Opinions

Interest of M.W. (CONFIDENTIAL) 2009 ND 55
Docket No.: 20080190
Filing Date: 4/7/2009
Case Type: Appeal - Criminal - Juvenile Law
Author: Maring, Mary

Highlight: A statute is ambiguous if it is susceptible to meanings that are different, but rational.
Under N.D.C.C. 27-20-34, a juvenile court is to automatically transfer a case involving gross sexual imposition or attempted gross sexual imposition only if the gross sexual imposition or attempted gross sexual imposition charge is "by force or by threat of imminent death, serious bodily injury, or kidnapping."

State v. Kunze 2009 ND 54
Docket No.: 20080253
Filing Date: 4/7/2009
Case Type: Appeal - Criminal - Misc. Felony
Author:

Highlight: Criminal judgment for contact by bodily fluids with a law enforcement officer is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Interest of B.F. (CONFIDENTIAL) 2009 ND 53
Docket No.: 20080140
Filing Date: 4/6/2009
Case Type: Appeal - Criminal - Juvenile Law
Author: Crothers, Daniel John

Highlight: Double jeopardy bars the State from appealing a juvenile court judge's order rejecting a judicial referee's determination of guilt.

Bergum v. ND Workforce Safety and Insurance, et al. 2009 ND 52
Docket No.: 20080097
Filing Date: 4/6/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: A claimant seeking workforce safety and insurance benefits has the burden of proving by a preponderance of the evidence that the claimant has suffered a compensable injury and is entitled to benefits.
A compensable injury must be established by medical evidence supported by objective medical findings.
It is not a compensable injury when the claimant's employment merely acts to trigger symptoms in a preexisting injury, disease, or other condition unless a claimant's employment substantially accelerates the progression of, or substantially worsens the severity of, the preexisting injury, disease, or other condition.

Langer, et al. v. Pender, et al. 2009 ND 51
Docket No.: 20080115
Filing Date: 4/6/2009
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Sandstrom, Dale

Highlight: The primary objective in construing a trust instrument is to ascertain the settlor's intent.
When a trust instrument is unambiguous, the settlor's intent is ascertained from the language of the trust document itself.
General rules of construction of written documents apply to the construction of trust instruments.
Particular clauses of a contract are subordinate to its intent.
When provisions in a contract are irreconcilable, the words which are inconsistent with the contract's nature or with the main intention of the parties are to be rejected.

Fremling v. Fremling 2009 ND 50
Docket No.: 20080197
Filing Date: 4/6/2009
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Divorce judgment denying spousal support summarily affirmed under N.D.R.App.P. 35(1)(a)(2).

Reciprocal Discipline of Thoms 2009 ND 49
Docket No.: 20090100
Filing Date: 4/6/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.

Hoff v. Krebs, et al. 2009 ND 48
Docket No.: 20080249
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: The implied co-insured rule does not apply when the initial claim arises from an injured third party.
The legal principle underlying the implied co-insured rule is the mutually insurable interest between a lessor and lessee.

State v. Bethke 2009 ND 47
Docket No.: 20080159
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: The failure to file an information does not automatically require reversal if the error is harmless beyond a reasonable doubt.
The failure to arraign a defendant does not warrant a reversal of a conviction if the issue is not raised before trial.
After an adverse decision at a preliminary hearing, the State may issue a new complaint if the State offers new evidence or has other good cause. An analysis from the State Laboratory constitutes new evidence.

Interest of J.K. (Confidential) 2009 ND 46
Docket No.: 20080180
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Juvenile Law
Author: Crothers, Daniel John

Highlight: Findings of fact in juvenile matters will not be set aside on appeal unless clearly erroneous.
To establish theft of property under N.D.C.C. 12.1-23-02(1), the State must prove an individual (1) knowingly (2) takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another (3) with intent to deprive the owner thereof.
Sufficient evidence existed to find juvenile committed theft because testimony of accomplice was corroborated by independent evidence connecting the juvenile with the commission of the theft.

State ex rel. K.B. v. Bauer 2009 ND 45
Docket No.: 20080092
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: In calculating income to be imputed to an unemployed obligor under the child support guidelines, a court may taken into consideration the fact that the obligor's past income circumstances had changed and were not a reliable indicator of his present or future earning capacity.
In calculating imputed income, the court has discretion to exclude an obligor's past earnings from a temporary college internship that has ended.
A child support obligation may be adjusted if the obligor's ability to provide support is reduced due to visitation-related travel expenses, but the expenses must be deducted from the obligor's net income, not directly from the child support obligation.

State v. Gibbs 2009 ND 44
Docket No.: 20070378
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Homicide
Author: Crothers, Daniel John

Highlight: A party must make a timely objection to an alleged error in the district court so the court may take appropriate action, if possible, to remedy any prejudice that may have resulted from the claimed error.
The prosecution may not comment on a defendant's failure to testify in a criminal case.
A jury is generally presumed to follow curative instructions.
The prosecution's statement during closing argument that there is no explanation for the prosecution's evidence does not constitute an improper comment on an accused's failure to testify where persons other than the accused could have offered contradictory evidence.

Interest of J.S.L. (CONFIDENTIAL) 2009 ND 43
Docket No.: 20080227
Filing Date: 4/2/2009
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: VandeWalle, Gerald

Highlight: In determining whether hearsay evidence has sufficient guarantees of trustworthiness to qualify for the residual hearsay exception, the circumstances surrounding the statement are compared to the closest applicable hearsay exception.
Hearsay evidence is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts only if no other evidence, or very little other evidence, is available on the same point.
The introduction of allegedly inadmissible evidence in a non-jury case will be reversed only if all the competent evidence is insufficient to support the judgment or it affirmatively appears that the incompetent evidence induced the court to make an essential finding which would not otherwise have been made.

State v. Henes 2009 ND 42
Docket No.: 20080166
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: Issues not raised to the district court will not be addressed for the first time on appeal unless the alleged error rises to the level of obvious error under N.D.R.Crim.P. 52(b).
A district court enhances a sentence when it increases a defendant's sentence beyond the statutory maximum sentence to another offense level or sentencing range, or under a mandatory sentencing provision because of a subsequent offense.
A district court may consider an uncounseled conviction when exercising its sentencing discretion, but may not consider an uncounseled conviction when enhancing a term of imprisonment for a subsequent offense without evidence of a valid waiver of the right to counsel.

State v. Foreid 2009 ND 41
Docket No.: 20080128
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: An additional or different offense is not charged when an information is amended to fix an error in the classification of the charged offense and comply with statutory requirements.
For an instruction on a lesser included offense, there must be evidence on which the jury could rationally find beyond a reasonable doubt that the defendant is not guilty of the greater offense and to find beyond a reasonable doubt that the defendant is guilty of the lesser.

Disciplinary Board v. Overboe 2009 ND 40
Docket No.: 20080219
Filing Date: 4/2/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A final determination of lawyer misconduct by another jurisdiction conclusively establishes misconduct for a disciplinary proceeding in North Dakota and requires the imposition of identical discipline unless the lawyer demonstrates and it clearly appears: (1) the procedure in the other jurisdiction was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; (2) there was such an infirmity of proof establishing the misconduct in the other jurisdiction that the decision from the other jurisdiction cannot be accepted; (3) the imposition of the same discipline would result in a grave injustice; or (4) the misconduct warrants substantially different discipline in this state.

Sturn v. Director, N.D. Dept of Transportation 2009 ND 39
Docket No.: 20080199
Filing Date: 4/2/2009
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: Radar is prima facie evidence of vehicle speed. The foundational requirements for conviction using radar are not the same as the requirement for reasonable suspicion.
An officer's testimony that a vehicle was "traveling rather quickly" and that he verified that it was speeding by using radar is sufficient for reasonable suspicion even if not accompanied by all the foundational elements necessary for conviction of speeding.

State v. Leingang 2009 ND 38
Docket No.: 20080168
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Contempt of Court
Author: VandeWalle, Gerald

Highlight: Contempt is not available when sums of money may be collected through the process of execution.
A litigant may have a court decide the merits of a dispute only after demonstrating standing to litigate the issue before the court.
To establish standing, a litigant must have suffered some threatened or actual injury resulting from the putatively illegal action.

State v. Holbach (consolidated w/20080003) 2009 ND 37
Docket No.: 20080002
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: When an individual's constitutional right to travel has been restricted by a judicial order, any conduct in violation of that judicial order is not a constitutionally protected activity for purposes of the stalking statute.
Violence and other activities that harm another person are not constitutionally protected.
To have standing to raise a vagueness challenge, a litigant must almost always demonstrate that the statute in question is vague as applied to his own conduct, without regard to its potentially vague application in other circumstances.

State v. Geiser 2009 ND 36
Docket No.: 20080120
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: The definition of "child" in N.D.C.C. 19-03.1-22.2(1)(b) does not include unborn children; therefore, the crime of "endangerment of a child or vulnerable adult" does not apply to an unborn child.

Verhey v. McKenzie 2009 ND 35
Docket No.: 20070234
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: When a child support obligor is unemployed or underemployed, the child support guidelines permit a court to impute income to the obligor.
The district court errs as a matter of law, however, if the court fails to comply with the child support guidelines in determining an obligor's child support obligation.

State v. Curtis 2009 ND 34
Docket No.: 20080007
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Highlight: A criminal defendant has a constitutional right to compulsory process to secure the attendance of witnesses who will provide testimony that is both favorable and material to a defense.
A subpoena must be served within a reasonable time before a witness's scheduled appearance, and whether service is within a reasonable time depends on the circumstances of each case.
A criminal defendant has a right to self-representation if the defendant knowingly and intelligently elects to do so.
A criminal defendant has a statutory right to require all communications with jurors after a case has been submitted to them to be made in open court and in the presence of the defendant.
A criminal defendant's statutory right to be present during the entire trial is of constitutional dimension, and the State must establish that a violation of a defendant's right to be present was harmless beyond a reasonable doubt.

Bragg, et al. v. Burlington Resources Oil & Gas Co. 2009 ND 33
Docket No.: 20080129
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: An entity taking an interest in real property subject to a lis pendens--a written notice of a pending suit involving real property--is bound by all proceedings taken after the filing of the notice of lis pendens to the same extent as if that entity were a party to the underlying action, including a settlement of the underlying action.

Gunia v. Gunia 2009 ND 32
Docket No.: 20080055
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A party seeking to modify a child support obligation within one year of the decision setting the obligation must show a material change in circumstances.
A material change in circumstances is a change that was neither contemplated nor foreseen at the time of the earlier support order.
In determining a child support obligation, a district court must clearly set forth how it arrived at the obligor's net income and the level of support.
Income and expenses from a solely owned Subchapter S corporation are attributable to the obligor for child support purposes.

Koropatnicki v. State 2009 ND 31
Docket No.: 20080235
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author:

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

State v. Steen (Consolidated w/20080244 thru 20080247) 2009 ND 30
Docket No.: 20080243
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author:

Highlight: A district court order denying defendant's motions for credit for time spent in custody is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Delzer, et al. v. Anderson 2009 ND 29
Docket No.: 20080206
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Contracts
Author:

Highlight: Civil money judgment relating to assigned divorce debt summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (6).

State v. Isom (Consolidated w/20080311-20080314) 2009 ND 28
Docket No.: 20080310
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author:

Highlight: The district court's order denying defendant's motion for credit for time served is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Reciprocal Discipline of Swensen 2009 ND 27
Docket No.: 20090095
Filing Date: 4/2/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred.

Reciprocal Discipline of Hellerud 2009 ND 26
Docket No.: 20090097
Filing Date: 3/27/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.

Interest of R.M. (CONFIDENTIAL) 2009 ND 25
Docket No.: 20090084
Filing Date: 3/20/2009
Case Type: Appeal - Civil - Mental Health
Author:

Highlight: Mental health commitment and involuntary medication order summarily reversed under N.D.R.App.P. 35.1(b).

Collection Specialist Int'l v. McLaughlin Const. Co. (Cons. w/20080242) 2009 ND 24
Docket No.: 20080241
Filing Date: 2/9/2009
Case Type: Appeal - Civil - Contracts
Author:

Highlight: District court judgment in favor of McLaughlin Construction Co. in a contract case is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Bruder v. WSI, et al. 2009 ND 23
Docket No.: 20080078
Filing Date: 2/6/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: When there are conflicting expert medical opinions about the cause of a workers compensation claimant's medical condition, Workforce Safety and Insurance has the responsibility to weigh credibility and resolve conflicts in the evidence.

Midthun v. Workforce Safety and Insurance, et al. 2009 ND 22
Docket No.: 20080137
Filing Date: 2/5/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: A party appealing a hearing officer's decision must file reasonably specific specifications of error detailing which matters are at issue, so as to alert the agency, other parties, and the court of the particular errors claimed.
The use of the word "may" in a statutory scheme is ordinarily understood as permissive rather than mandatory and operates to confer discretion.
Under N.D.C.C. 65-05-10(2), Workforce Safety and Insurance has discretion over whether to waive the five-year limitation on partial disability benefits, even where a claimant has met one of the statutory exemptions.

Adoption of J.D.F. (Confidential) 2009 ND 21
Docket No.: 20080152
Filing Date: 2/5/2009
Case Type: Appeal - Civil - Adoption
Author: Maring, Mary

Highlight: A district court must advise parents that they are entitled to representation by counsel, provided by the State if necessary, throughout any proceedings to terminate the parent-child relationship against their will.

Kelly v. Kelly 2009 ND 20
Docket No.: 20080103
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Adoption of H.G.C. (confidential) 2009 ND 19
Docket No.: 20080096
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Adoption
Author: Sandstrom, Dale

Highlight: A parent's parental rights, including the right to withhold consent to an adoption, may be terminated if the parent has abandoned the minor child.
A court must consider the parent's contact and communication with the child, the parent's love, care and affection toward the child, the parent's acceptance of parental obligations, whether the parent has negligently failed to perform his parental duties, and the parent's intent in deciding whether the parent has abandoned the child.

Ulsaker v. White 2009 ND 18
Docket No.: 20080093
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: A long-term marriage supports an equal distribution of marital property.
A party's dissipation of marital assets is a relevant factor for the district court to consider when dividing the marital estate.
A district court should consider tax consequences when determining divorce transactions, but phantom tax consequences are not a relevant basis on which to divide marital property.

Reinholdt v. ND Dept. of Human Services 2009 ND 17
Docket No.: 20080210
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: If a Medicaid applicant has a legal ability to obtain an asset, it is considered an actually available resource. In determining whether an asset is actually available, the focus is on the Medicaid applicant's actual and practical ability to obtain the asset as a matter of fact, not of legal fiction.

Hendrickson v. Olson 2009 ND 16
Docket No.: 20080164
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: The admissibility of evidence in any adjudicative proceeding before an administrative agency is determined under the rules of evidence unless there is a specific waiver stated orally or in writing before or at the hearing.
To be eligible for Medicaid benefits as an incapacitated parent of a child receiving Medicaid benefits, a parent must have a physical or mental defect of such a debilitating nature as to reduce substantially or eliminate the parent's capacity either to earn a livelihood or to discharge the parent's responsibilities as a homemaker and provider of child care for 30 days or more.

City of Fargo v. Salsman 2009 ND 15
Docket No.: 20080162
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Sandstrom, Dale

Highlight: A municipality has the authority to bring a nuisance abatement action.
Whether a nuisance exists is a mixed question of fact and law.
The state nuisance law and Fargo's nuisance ordinances are not void for vagueness or unconstitutionally overbroad.

Hector, et al. v. City of Fargo 2009 ND 14
Docket No.: 20080177
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: The decision of a local governing body on whether to amend the city zoning map and growth plan will be affirmed unless the local body acted arbitrarily, capriciously or unreasonably, or if there is not sufficient evidence supporting the decision.
A city must adopt a comprehensive plan governing zoning regulations, and must follow certain statutory procedures when adopting the plan.
A local governing body does not engage in contract zoning simply by speaking with landowners about concerns over the details of proposed zoning amendments.

Myers v. State (cross-reference 20050368) 2009 ND 13
Docket No.: 20080186
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: The failure to file a pretrial suppression motion alone is not enough to meet the burden of proving ineffective assistance of counsel; the petitioner must show actual prejudice.

Citibank v. Reikowski 2009 ND 12
Docket No.: 20080218
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Debtor/Creditor
Author: Crothers, Daniel John

Highlight: Any action or proceeding involving an issue subject to arbitration shall be stayed if an application for stay has been made.

Slorby v. Slorby 2009 ND 11
Docket No.: 20080105
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: If the language of a judgment is unambiguous and plain, neither construction nor interpretation is allowed, and the effect of the language must be based on the language's literal meaning.
When interpreting a judgment, the language of the judgment should be construed as to give effect to each and every part of it, and bring all different parts into harmony as far as this can be done by fair and reasonable interpretation.

Doepke v. Doepke 2009 ND 10
Docket No.: 20080142
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A court errs as a matter of law if it does not comply with the requirements of the child support guidelines when it determines a child support obligation.
Under the child support guidelines, a self-employed individual's child support obligation is generally calculated using an average of the individual's income for the most recent five-year period.
An issue may not be addressed if it is not included in the statement of the issues.

City of Fargo v. Lunday 2009 ND 9
Docket No.: 20080127
Filing Date: 2/3/2009
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: Under N.D.R.Crim.P. 29(a), a defendant in a criminal jury trial must still make a motion for judgment of acquittal to preserve the issue of the sufficiency of the evidence for appeal.

State v. Scutchings 2009 ND 8
Docket No.: 20080125
Filing Date: 2/3/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: A prosecutor's comment during closing arguments that the government's evidence is uncontradicted or unrebutted is improper if the only person who could have rebutted the evidence was the defendant testifying on his or her own behalf, and the defendant has chosen not to testify at the trial.

State v. Walstad (Consolidated w/20080272 & 20080273) 2009 ND 7
Docket No.: 20080271
Filing Date: 2/3/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author:

Highlight: The district court's order denying defendant's motion for credit for time spent in custody is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (2).

State v. Vick 2009 ND 6
Docket No.: 20080176
Filing Date: 2/3/2009
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: The district court's second amended judgment denying defendant's motion for additional credit for time spent in custody is summarily affirmed under N.D.R.App.P. 35.1(a)(2).