Opinions

Geray v. Bertsch 2009 ND 5
Docket No.: 20060173
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: The district court's memorandum opinion and order denying defendant's motion to vacate is summarily affirmed under N.D.R.App.P. 35.1(a)(4), and plaintiff's request for attorney's fees on appeal is denied under N.D.R.App.P. 38.

Pribyl v. State 2009 ND 4
Docket No.: 20080185
Filing Date: 2/3/2009
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. Huffling 2009 ND 3
Docket No.: 20080151
Filing Date: 2/3/2009
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: If a sentence imposed by a trial court is within the range authorized by statute, this Court does not have the power to review the discretion of the sentencing court.

State v. Cahoon 2009 ND 2
Docket No.: 20080173
Filing Date: 2/3/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author:

Highlight: Judgment entered upon a jury verdict finding appellant guilty of violating a disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Adoption of E.H.L. (CONFIDENTIAL) 2009 ND 1
Docket No.: 20080167
Filing Date: 2/2/2009
Case Type: Appeal - Civil - Adoption
Author:

Highlight: Judgment terminating father's parental rights and granting grandparents' petition to adopt the child is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Voigt v. State 2008 ND 236
Docket No.: 20080157
Filing Date: 12/31/2008
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: A party seeking to bring a claim against the State or its employees must strictly comply with the requirements of N.D.C.C. 32-12.2-04(1).
Statements made during a legislative proceeding are absolutely privileged.

Disciplinary Board v. Karlsen (Consolidated w/ 20080295) 2008 ND 235
Docket No.: 20080294
Filing Date: 12/23/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred.

Clark v. State (Cross-reference w/20030238) 2008 ND 234
Docket No.: 20080122
Filing Date: 12/18/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: The law does not require that an evidentiary hearing be held on an application for post-conviction relief when the parties do not request a hearing.
New counsel on appeal inherits the strategies of prior counsel.
A court does not second-guess matters of trial strategy.

Gustafson v. Gustafson 2008 ND 233
Docket No.: 20080109
Filing Date: 12/18/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: When an award of spousal support is reversed, the party paying is entitled to restitution for any amount paid since entry of the district court judgment, unless it would be inequitable.
An owner of real property does not need to possess special knowledge or further qualification to testify to the property's value.

State v. Lium (cross ref with 20070135) 2008 ND 232
Docket No.: 20080100
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - Assault
Author: Maring, Mary

Highlight: A defendant moving to withdraw his guilty plea before sentencing bears the burden of establishing a fair and just reason exists.
Among the factors that a district court may consider in determining whether a fair and just reason exists to withdraw a guilty plea before sentencing are: (1) the amount of time that has passed between the entry of the plea and the motion to withdraw; (2) defendant's assertion of innocence or a legally cognizable defense to the charge; (3) prejudice to the government; (4) whether the plea was knowing and voluntary; (5) whether the plea was made in compliance with Rule 11, N.D.R.Crim.P.; (6) whether adequate assistance of counsel was available to the defendant; (7) the plausibility of the reason for seeking to withdraw; (8) whether a plea withdrawal would waste judicial resources; and (9) whether the parties had reached or breached a plea agreement.

City of Minot v. Rudolph 2008 ND 231
Docket No.: 20080135
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: Home rule charters permit cities to enact certain ordinances which differ from state laws.
Within the scope of statutory authorization, a home rule city's charter and the ordinances made under the charter supersede, within the territorial limits and other jurisdiction of the city, laws of the state in conflict with the charter and ordinances and must be liberally construed for such purposes.
If the requirements to supersede state law are not met, a home rule city's powers are those bestowed by the legislature on all municipalities.

State v. Salter 2008 ND 230
Docket No.: 20080080
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: A driver's consent to chemical testing is implied if the statutory implied consent provisions have been met, and a driver must affirmatively refuse to submit to testing to withdraw the consent.

Serr v. Serr (Cross-Ref w/20070231) 2008 ND 229
Docket No.: 20080188
Filing Date: 12/16/2008
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: To determine whether parents have equal physical custody of a child for purposes of applying child support guidelines, the actual language of the judgment controls.

State v. Moos (Consolidated w/20080048) 2008 ND 228
Docket No.: 20080047
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: The Blockburger "same elements" test, used to determine whether two crimes constitute the same offense for purposes of double jeopardy, is merely a canon of statutory construction and is not controlling if the legislative intent is clear from the face of the statute or the legislative history.
Multiple convictions and punishments are not permitted for the same conduct under the theft by deception, forgery or counterfeiting, and deceptive writings statutes.
Although the State has the burden of proving the appropriate amount of restitution, the defendant has the burden to raise and prove an inability to pay the restitution ordered.
A motion for a new trial based upon newly discovered evidence will be granted only if the new evidence is of such a nature that it would probably produce an acquittal upon retrial.

State v. Roth 2008 ND 227
Docket No.: 20080060
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: A defendant's probation can be revoked if he violates the conditions of probation while incarcerated or on parole on other charges.

Schipper Construction, Inc. v. American Crystal Sugar Co. 2008 ND 226
Docket No.: 20080123
Filing Date: 12/16/2008
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: A notice of rescission must be clear, unambiguous, and unequivocal.

Matter of Peterson's dogs 2008 ND 225
Docket No.: 20080094
Filing Date: 12/16/2008
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: When an animal has been confiscated under a law for humane treatment of animals, the owner is entitled to a hearing to determine whether the animal should be returned.
Whether an owner has voluntarily relinquished or waived ownership rights to an animal generally is a finding of fact, and the owner must be allowed an opportunity to present evidence on that issue if it has been adequately raised.

Brummund v. Brummund 2008 ND 224
Docket No.: 20080170
Filing Date: 12/16/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: Certification of an order or judgment as final under N.D.R.Civ.P. 54(b) is reserved for those cases involving unusual circumstances where failure to allow an immediate appeal would create demonstrated prejudice or hardship.
Rule 54(b) certification is not appropriate if the judgment does not fully decide an entire claim.

State v. Uran 2008 ND 223
Docket No.: 20080111
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: A warrantless search of a home is not unreasonable if the search falls under an exception to the search warrant requirement.
The scope of consent is measured objectively by what a reasonable person would have understood by the exchange between the police and the suspect.

Matter of G.R.H. (CONFIDENTIAL) 2008 ND 222
Docket No.: 20080102
Filing Date: 12/16/2008
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: In reviewing the civil commitment of a sexually dangerous individual, all sexually predatory conduct, including that which did not result in a charge or conviction, may be considered.
Evidence showing serious difficulty in controlling behavior suffices to distinguish a sexually dangerous individual from other dangerous persons.

Siewert v. Siewert (Consolidated w/20080095) 2008 ND 221
Docket No.: 20080065
Filing Date: 12/16/2008
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: District courts have discretion to appoint a guardian ad litem in child custody modification cases.
A court may modify a child custody order if more than two years have passed since the order was entered and there has been a material change in circumstances and the modification is necessary to serve the best interests of the child.
A court's decision to modify custody is a finding of fact, which will be reversed on appeal only if it is clearly erroneous.
District courts have jurisdiction to modify child support while an appeal is pending from a decision on a custody motion that does not address child support.

State v. Harlan 2008 ND 220
Docket No.: 20080083
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Evidence discovered as a result of a pocket search following a safety pat-down search which provides no indication of a weapon or anything similar must be suppressed because the pocket search under such circumstances has exceeded the initial justification for the pat-down search.

State v. Mosbrucker 2008 ND 219
Docket No.: 20070355
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: A victim must understand more than the physical aspects of sex to be capable of understanding the nature of a sexual act under N.D.C.C. 12.1-20-03(1)(e).
The remedies afforded by appeal from a judgment and appeal from an order denying a new trial are independent remedies.

Miller v. State 2008 ND 218
Docket No.: 20080113
Filing Date: 12/16/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author:

Highlight: District court order denying post-conviction relief and order confirming credit for incarceration summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Buck 2008 ND 217
Docket No.: 20080153
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author:

Highlight: Judgment entered upon a jury verdict finding appellant guilty of driving while under the influence of alcohol is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Disciplinary Board v. Nemec 2008 ND 216
Docket No.: 20080264
Filing Date: 12/3/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended from the practice of law.

Disciplinary Board v. Sletten (Consolidated w/ 20080147 - 20080150) 2008 ND 215
Docket No.: 20080146
Filing Date: 11/25/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred.

Hanisch v. Osvold 2008 ND 214
Docket No.: 20080012
Filing Date: 11/24/2008
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A district court's award of custody is treated as a finding of fact and, on appeal, will not be reversed unless it is clearly erroneous under N.D.R.Civ.P. 52(a).
Under the clearly erroneous standard of review, the evidence is not reweighed and the credibility of witnesses is not reassessed, and the appellate court will not retry a custody case or substitute its judgment for a district court's initial custody decision merely because it might have reached a different result.

State v. Evans 2008 ND 213
Docket No.: 20080143
Filing Date: 11/24/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author:

Highlight: Judgment entered upon a jury verdict finding appellant guilty of possession of a controlled substance is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Kruckenberg 2008 ND 212
Docket No.: 20080106
Filing Date: 11/24/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: A defendant has the right to be present in the courtroom at every stage of the trial.
All communications with the jurors, after a case has been submitted to them, must be made in open court and in the presence of the defendant.
Testimony requested by the jury must be given at the jury's request.
Not every assertion of prosecutorial misconduct results in the denial of the defendant's right to a fair trial.
A defendant may not claim error for arguments that are invited.

Solem v. Solem 2008 ND 211
Docket No.: 20080091
Filing Date: 11/21/2008
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: An award of rehabilitative spousal support that is to last longer than the length of the marriage does not, alone, indicate the award is clearly erroneous.
A trial court's determination regarding attorney fees is reviewed under an abuse of discretion standard.

Matter of the Trust of Pederson 2008 ND 210
Docket No.: 20080076
Filing Date: 11/21/2008
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: A district court is not required to supervise a trust simply because an interested party requests supervision; rather, a petitioner must establish a justification for supervision of a trust.
If it is possible to achieve the purpose of the trust, the trust will not be extinguished.
If a lawsuit is brought for an improper purpose or without evidentiary support, sanctions may be imposed.

Aakre v. Disciplinary Board 2008 ND 209
Docket No.: 20080268
Filing Date: 11/21/2008
Case Type: Discipline - Attorney - Original Proceeding
Author:

Highlight: Lawyer reinstatement ordered.

Matter of M.D. (CONFIDENTIAL) 2008 ND 208
Docket No.: 20080082
Filing Date: 11/19/2008
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: A district court reviewing the civil commitment of a sexually dangerous individual must consider all evidence presented and not merely the individual's actuarial test scores.
A sexually dangerous individual who has not completed treatment, continues to engage in inappropriate behavior and has serious difficulty controlling his behavior may still be a sexually dangerous individual even if he or she scored low to moderate in all the risk assessment instruments.

Peterson v. DS Dispatch 2008 ND 207
Docket No.: 20080165
Filing Date: 11/19/2008
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Judgment and order denying a motion to vacate judgment are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Aasmundstad, et al. v. State of ND, et al. 2008 ND 206
Docket No.: 20080018
Filing Date: 11/19/2008
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: To establish an inverse condemnation claim, a property owner must prove a public entity took or damaged the owner's property for a public use and the public use was the proximate cause of the damage.
Proximate cause cannot be established without reliable evidence establishing a causal connection.
In an inverse condemnation action, whether a public improvement is the proximate cause of a taking or damages is a question of fact.
To prevail on an act-of-God defense, a defendant must prove the claimed act of God was the sole proximate cause of damage.
Whether an act-of-God defense has been established is a question of fact.

Halvorson v. Sentry Insurance 2008 ND 205
Docket No.: 20080133
Filing Date: 11/19/2008
Case Type: Appeal - Civil - Personal Injury
Author: Sandstrom, Dale

Highlight: For summary judgment purposes, a no-fault insurance benefits plaintiff must present competent evidence and cannot rest on his or her unsupported allegations to establish a connection between his or her injuries and the alleged cause.

State v. McAvoy 2008 ND 204
Docket No.: 20080126
Filing Date: 11/19/2008
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: A district court does not abuse its discretion by not postponing a probation revocation hearing until underlying criminal charges are disposed of in light of a probationer's last-minute request for a continuance and the societal interest of a prompt hearing when a probationer has allegedly engaged in a course of criminal activity.
A probation revocation may be sustained by showing only a single violation of the probation.

State v. Alvarado 2008 ND 203
Docket No.: 20080107
Filing Date: 11/19/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: When prior acts are evidence of activity in furtherance of the same criminal activity, rather than independent of the charged crime, the evidence does not fall under N.D.R.Ev. 404(b).
When sufficiency of the evidence is challenged, all inferences are drawn in favor of the verdict.

State v. Bitz 2008 ND 202
Docket No.: 20080101
Filing Date: 11/19/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: On a challenge to the sufficiency of evidence at trial, a criminal conviction will be reversed only if, after viewing the evidence and all reasonable evidentiary inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.

Colombe v. Carlson 2008 ND 201
Docket No.: 20080023
Filing Date: 11/19/2008
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: Courts have the authority to dismiss a civil appeal if the party requesting relief is a fugitive at the time the appeal is pending.
The fugitive dismissal rule should be invoked with great caution and restraint.
Before dismissing a case under the fugitive dismissal rule, a reviewing court considers: (1) the connection between the litigant's fugitive status and the litigant's appeal; (2) whether there is an alternative short of dismissal that will render enforcement of the underlying judgment certain and remove the risk of prejudice to the fugitive's adversary; and (3) the policy concerns of the fugitive dismissal rule are present.

State v. Trout 2008 ND 200
Docket No.: 20080079
Filing Date: 11/19/2008
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: Evidence of other crimes, wrongs, or acts is not admissible at trial to prove a person acted in conformity therewith. Such evidence will only be allowed for other relevant purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The introduction of prior bad acts evidence will warrant reversal of conviction only if the admitted testimony is so prejudicial that substantial injury occurred, and a different decision would have resulted had the error not been made.
A jury is presumed to follow instructions made by the court. The issuance of a curative instruction to disregard certain evidence is generally sufficient to remove the threat of prejudice in a jury trial.

Everett v. State 2008 ND 199
Docket No.: 20080063
Filing Date: 11/19/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: An application for post-conviction relief may be denied on the ground of misuse of process when the appellant fails to raise the arguments in his prior direct appeal.
Issues not briefed by an appellant are deemed abandoned.
Summary dismissal of a post-conviction claim of ineffective assistance of counsel is appropriate if the petitioner does not raise a genuine issue of material fact.
A reviewing court considers length of delay, reason for delay, appellant's assertion of his right, and prejudice to the appellant when determining whether a district court had good cause to continue a trial.

Matter of Hanson 2008 ND 198
Docket No.: 20080098
Filing Date: 11/19/2008
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author:

Highlight: Civil commitment of a sexually dangerous individual summarily reversed and remanded under N.D.R.App.P.35.1(b) for detailed findings of fact and conclusions of law.

Matter of Vantreece 2008 ND 197
Docket No.: 20080004
Filing Date: 11/19/2008
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author:

Highlight: Order of commitment as a sexually dangerous person summarily reversed under N.D.R.App.P. 35.1(b).

State v. Kaseman 2008 ND 196
Docket No.: 20080088
Filing Date: 10/27/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: Restitution is a type of sentence.
A district court may not order restitution, then later increase restitution, unless the district court reserves the issue prior to or at the time of sentencing.

Kucera v. Kucera 2008 ND 195
Docket No.: 20080006
Filing Date: 10/27/2008
Case Type: Appeal - Civil - Divorce - Property
Author:

Highlight: Divorce judgment summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

P.A. v. A.H.O. (CONFIDENTIAL) 2008 ND 194
Docket No.: 20080049
Filing Date: 10/27/2008
Case Type: Appeal - Civil - Paternity
Author: VandeWalle, Gerald

Highlight: The Court reviews findings of fact in custody awards under a clearly erroneous standard.
Custody will be awarded to the parent who will promote the best interests and welfare of the child, which is determined by the court's consideration of several factors.
While the best interests factors should each be given equal consideration, there is no mathematical formula which awards custody to the party with the most factors in his or her favor. The best interests of a child must be examined on a case-by-case basis.
This Court has not held there is a presumption against joint custody. However, a trial court must find that joint custody is in a child's best interest for the Court to affirm a joint custody award.

Horton v. Horton 2008 ND 193
Docket No.: 20080087
Filing Date: 10/24/2008
Case Type: Appeal - Civil - Child Support
Author: Not Available

Highlight: Order denying name change is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Clark v. Workforce Safety & Insurance, et al. 2008 ND 192
Docket No.: 20080089
Filing Date: 10/24/2008
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: If there is conflicting medical evidence presented in a case, some of it favorable and some unfavorable to a claimant, WSI must adequately explain its reason for disregarding the favorable evidence when it reaches a conclusion less favorable to the claimant.