Opinions

State ex rel. Dept. of Labor v. Riemers, et al. 2008 ND 191
Docket No.: 20070363
Filing Date: 10/24/2008
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: An unlicensed natural person cannot be an attorney for an artificial person, such as a limited liability company. Court documents signed by a non-attorney on behalf of a limited liability company are void.

Estate of Samuelson 2008 ND 190
Docket No.: 20080075
Filing Date: 10/24/2008
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: When a person excludes an individual in his will, the individual is excluded from taking both under the will and under intestate succession, unless the person making the will expressly specifies to the contrary.
Disinheritance must be expressed and cannot be implied.

Lord & Stevens, Inc., et al. v. 3D Printing, Inc., et al. 2008 ND 189
Docket No.: 20070341
Filing Date: 10/22/2008
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: Whether there is an express or implied contract between the parties is a question for the trier of fact.
There can be no implied in law contract to prevent unjust enrichment when there is an express or implied in fact contract between the parties relative to the same subject matter.

Schmidt v. Job Service, et al. 2008 ND 188
Docket No.: 20080071
Filing Date: 10/22/2008
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: VandeWalle, Gerald

Highlight: For purposes of unemployment benefits, misconduct is conduct evincing a willful or wanton disregard of an employer's interests and is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of an employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to an employer.
The reasons for a teacher non-renewal may rise to the level of misconduct for purposes of unemployment compensation benefits.

Ebach v. Ebach 2008 ND 187
Docket No.: 20080057
Filing Date: 10/22/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: A party seeking to modify a spousal support obligation must prove there has been a material change in circumstances since the time of the initial decree or, if the initial support award has been modified, a change since the subsequent modification.
A court must make sufficient factual findings to provide the appellate court with the basis for the court's decision.

State v. Wetzel 2008 ND 186
Docket No.: 20080042
Filing Date: 10/22/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Maring, Mary

Highlight: Words of a statute are given their plain, ordinary, and commonly understood meaning.
The boundary of a county located next to the Missouri River extends to the center of the main channel of the river.

Matter of R.A.S. (Confidential) 2008 ND 185
Docket No.: 20080043
Filing Date: 10/22/2008
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Maring, Mary

Highlight: A court must make sufficient factual findings to provide the appellate court with the basis for the court's decision.
Generally, issues not raised in prior proceedings will not be addressed on appeal.

Public Service Commission v. Minnesota Grain 2008 ND 184
Docket No.: 20080068
Filing Date: 10/22/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: On legal questions, such as interpretation of a statute, an agency's decision is fully reviewable on appeal.
Chapter 60-04, N.D.C.C., addresses insolvent grain warehousemen and provides an insolvency procedure designed to provide a prompt method for receipt holders to recover their claims.
Statutes relating to the same subject matter shall be construed together and should be harmonized, if possible, to give meaningful effect to each, without rendering one or the other useless.

Brown v. Brodell, et al. 2008 ND 183
Docket No.: 20080005
Filing Date: 10/22/2008
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Findings of fact in cases involving the doctrine of acquiescence are reviewed under a clearly erroneous standard.
A landowner may satisfy the doctrine of acquiescence by showing that a neighboring landowner recognized a boundary line through silence and conduct.

ND State Electrical Board v. Boren 2008 ND 182
Docket No.: 20070352
Filing Date: 10/22/2008
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: The right of appeal is governed solely by statute in this state, and if there is no statutory basis to hear an appeal, the appeal must be dismissed.
There is a two-part test for determining whether jurisdiction over an appeal exists: First, the order appealed from must meet one of the statutory criteria of appealability set forth in N.D.C.C. 28-27-02. If it does not, the appeal must be dismissed. If it does, then Rule 54(b), N.D.R.Civ.P., must be complied with.

House v. Royer, et al. 2008 ND 181
Docket No.: 20080081
Filing Date: 10/22/2008
Case Type: Appeal - Civil - Landlord/Tenant
Author: Per Curiam

Highlight: Judgment of eviction is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Bolinske v. Jaeger, et al. 2008 ND 180
Docket No.: 20080222
Filing Date: 9/29/2008
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Per Curiam

Highlight: A writ of mandamus may be issued to compel the performance of an act which the law specifically requires a state official to perform.
A vacancy on a no-party ballot exists when a candidate nominated at the primary election dies, resigns, or otherwise becomes disqualified to have the candidate's name printed on the ballot at the general election, no candidates were nominated at the primary election because the office did not yet exist, or the timing of the vacancy in an office makes it impossible to have it placed on the primary ballot.
A vacancy does not exist on a no-party ballot if only one candidate runs for a designated position at the primary election, is nominated, and is listed on the general election ballot.
Parties raising a constitutional challenge must bring up the heavy artillery or forego the attack entirely.

Tarnavsky v. Tarnavsky, et al. 2008 ND 179
Docket No.: 20070161
Filing Date: 9/26/2008
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Orders denying motions to "Quash Garnishment Summons," to "Expunge Order Denying Motion to Quash Garnishment Summons," to "Deny Order Confirming Sale," to amend findings under N.D.R.Civ.P. 52(b), for "Extra Ordinary Relief," and for relief from the judgment under N.D.R.Civ.P. 60(b) are summarily affirmed under N.D.R.App.P. 35.1(a)(1), (2), and (4).

Drayton v. Workforce Safety and Insurance, et al. 2008 ND 178
Docket No.: 20070281
Filing Date: 9/25/2008
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: Courts are more circumspect about applying administrative res judicata than judicial res judicata, taking into account (1) the subject matter decided by the administrative agency, (2) the purpose of the administrative action, and (3) the reasons for the proceeding.
Unless otherwise provided, statutes in effect on the date of injury govern a claimant's right to collect workers compensation benefits.
A willful failure to give a maximum consistent effort in a functional capacity assessment can constitute noncompliance with vocational rehabilitation.

Disciplinary Board v. Tollefson 2008 ND 177
Docket No.: 20080205
Filing Date: 9/23/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.

Martin v. Trinity Hospital 2008 ND 176
Docket No.: 20070329
Filing Date: 9/23/2008
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: A subpoena to a named person must be served by personal service.
A court must quash a subpoena if it fails to allow a reasonable time for compliance or subjects a person to an undue burden.
Although mere uncertainty as to the exact amount of damages will not preclude recovery for breach of contract and the best evidence which the circumstances will permit is all the law requires, a party may not offer estimates and inexact evidence of damages if there is definite evidence available for an exact determination of the damages resulting from the breach.
The trial court may grant a pre-verdict judgment as a matter of law under N.D.R.Civ.P. 50(a) on its own motion.
It is unnecessary for an appellee to file a cross-appeal if the judgment below is entirely favorable, and the appellee may attempt to save the judgment by urging any ground raised in the trial court.

Ramsey County Farm Bureau, et al. v. Ramsey County, et al. 2008 ND 175
Docket No.: 20080054
Filing Date: 9/23/2008
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A county must substantially comply with mandatory post-enactment statutory publication requirements for an ordinance to become effective.
Declaratory judgment actions determine whether an ordinance is valid under current law.

State v. Crabtree 2008 ND 174
Docket No.: 20070280
Filing Date: 9/23/2008
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: When reviewing a district court's ruling on a motion to suppress, deference is given to the district court's findings of fact and conflicts in testimony are resolved in favor of affirmance.
The voluntariness of a confession depends upon questions of fact to be resolved by the district court. Because the district court is in a superior position to judge credibility and weight, great deference is given to a district court's determination of voluntariness.
A witness must ordinarily assert the privilege against self-incrimination when confronted with questions that the government should reasonably expect to elicit incriminating evidence, but one exception is when the assertion of the privilege is penalized so as to foreclose a free choice to remain silent and compel incriminating testimony.

Buchholz, et al. v. Burlington Resources (consolidated w/20080027) 2008 ND 173
Docket No.: 20080026
Filing Date: 9/23/2008
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: When an oil and gas operating unit is created, existing contracts are to be regarded as modified or amended only to the extent necessary to conform to the applicable statutory provisions, the Industrial Commission's order creating the unit, or the unit operating agreement, and in all other respects remain in full force and effect.

City of Fargo v. Malme, et al. (cross reference w/20070043) 2008 ND 172
Docket No.: 20080069
Filing Date: 9/23/2008
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: Absent statutory or contractual authority, each party to a lawsuit bears its own attorney fees.
After a successful appeal to the Supreme Court, the appellant becomes the prevailing party in the district court for purposes of taxing costs and disbursements.

Rennich v. ND Department of Human Services 2008 ND 171
Docket No.: 20070335
Filing Date: 9/23/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: Administrative agencies are authorized to promulgate rules implementing statutes which they are empowered to administer or enforce.
The term "rule" under the Administrative Agencies Practice Act does not include explanatory guidelines or manual provisions which are not intended to have the force and effect of law.

State v. Ferrie (Consolidated w/20070371) 2008 ND 170
Docket No.: 20070370
Filing Date: 9/23/2008
Case Type: Appeal - Criminal - Other
Author: Sandstrom, Dale

Highlight: A court may not dismiss a criminal case for failure to prosecute when there has been no notice to the state.

State v. Krogen 2008 ND 169
Docket No.: 20080041
Filing Date: 9/23/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Criminal judgment for driving under suspension is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Johnson (consolidated w/20080022) 2008 ND 168
Docket No.: 20080021
Filing Date: 9/23/2008
Case Type: Appeal - Criminal - Misc. Felony
Author:

Highlight: Criminal judgments for contact by bodily fluids with a law enforcement officer and a person lawfully present in a correctional facility who is not an inmate are summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Ongstad, et al. v. Piper Jaffray & Co. 2008 ND 167
Docket No.: 20070260
Filing Date: 9/8/2008
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: A party seeking to invoke application of federal preemption under the Securities Litigation Uniform Standards Act ("SLUSA") must show that (1) the action is a "covered class action" under the Act; (2) the action purports to be based upon state law; (3) the action alleges the defendant misrepresented or omitted a material fact, or used or employed a manipulative or deceptive device or contrivance; and (4) the action alleges the defendant's misrepresentations, omissions, manipulations, or deceptions were made in connection with the purchase or sale of a covered security.
In determining whether a class action is barred under SLUSA, courts look to the actual nature of the conduct alleged, and plaintiffs may not avoid SLUSA's preemptive effect by creative or artful pleading.
SLUSA's preemptive reach must be broadly construed, and is coextensive with federal regulatory authority over securities fraud under Section 10b and Rule 10b-5.
When a broker purchases or sells securities on a client's behalf without authorization, the unauthorized transaction may constitute securities fraud.

Von Ruden v. ND Workforce Safety and Insurance 2008 ND 166
Docket No.: 20070367
Filing Date: 9/8/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: A court reviewing an administrative appeal may not consider additional evidence not contained in the administrative record filed with the court.
Waiver is a voluntary and intentional relinquishment of a known advantage, benefit, claim, privilege, or right, and may be established by express agreement or may be inferred from a party's acts or conduct.

Doeden v. Stubstad 2008 ND 165
Docket No.: 20070322
Filing Date: 9/4/2008
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: A gift is a transfer of personal property voluntarily made without consideration and need not be in writing.
A valid gift requires an intention by the donor to give property to the donee, coupled with an actual or constructive delivery of the property to the donee and acceptance of the property by the donee.
If a written contract is ambiguous, extrinsic evidence may be considered to determine the parties' intent, and the terms of the contract and the parties' intent are questions of fact.

Grinnell Mutual Reinsurance Co. v. Thies, et al. 2008 ND 164
Docket No.: 20080017
Filing Date: 9/4/2008
Case Type: Appeal - Civil - Insurance
Author: VandeWalle, Gerald

Highlight: An insurance contract is construed to give effect to the mutual intention of the parties as it existed at the time of contracting.
Courts look first to the language of an insurance contract, and if the policy language is clear on its face, there is no room for construction.
A third-party liability insurance policy provides coverage for the insured's liability to another in which the insurer assumes a contractual duty to pay judgments recovered against the insured arising from the insured's negligence, while a first-party property insurance policy provides coverage for loss or damage sustained by the insured in which the insurer promises to provide coverage to the insured upon the happening of the risk insured against.

Coughlin Construction v. Nu-Tec Industries, et al. 2008 ND 163
Docket No.: 20070311
Filing Date: 9/4/2008
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: Objections to damages must be raised in the district court to preserve those issues for appellate review.
Whether a party has made a good-faith effort to mitigate damages is a finding of fact that will be set aside on appeal only if it is clearly erroneous.
Although the officers and directors of a corporation generally are not liable for the ordinary debts of a corporation, the corporate veil may be pierced when the legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime.

Disciplinary Board v. McCray (Consolidated w/ 20070377) 2008 ND 162
Docket No.: 20070376
Filing Date: 9/3/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended from practice of law for six months and one day and ordered to pay costs and expenses of proceeding for violating N.D.R. Prof. Conduct 1.5, 4.1, 5.4, 5.5(e), 7.3(a), 8.4(c), (f), and (g), and N.D.R. Lawyer Discipl. 1.2A(3) and (8).
Improper solicitation of clients occurs when a lawyer involves himself with an organization that independently targets and solicits prospects for his representation.

Sanders v. Gravel Products, Inc. 2008 ND 161
Docket No.: 20080001
Filing Date: 9/2/2008
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: A person may waive contractual rights and privileges to which that person is legally entitled.
A claim that ERISA was violated because an employer failed to properly fund a retirement plan is within the concurrent jurisdiction of a state court.
A contract between one employee and an employer can be an employee benefit plan subject to ERISA.
The existence of an ERISA plan is a mixed question of fact and law.

Lucas v. Porter, et al. 2008 ND 160
Docket No.: 20070169
Filing Date: 8/28/2008
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: The rule against splitting a cause of action is part of a rule of abatement and part of a rule of res judicata.
A pending action may be pleaded as a bar to a subsequent action where a final judgment in the prior action, pleaded in abatement, would support a plea of res judicata on the issues involved in the second action.
Claim preclusion prevents the relitigation of claims that were raised or could have been raised in prior actions between the same parties or their privies and means a valid existing final judgment from a court of competent jurisdiction is conclusive with regard to claims raised, or those that could have been raised and determined, as to the parties and their privies in all other actions.
Claim preclusion applies even if subsequent claims are based upon a different legal theory.
For proposes of claim preclusion, privity exists if a person is so identified in interest with another that the person represents the same legal right.

Gustafson v. Poitra, et al. 2008 ND 159
Docket No.: 20070301
Filing Date: 8/28/2008
Case Type: Appeal - Civil - Foreclosure
Author: Kapsner, Carol

Highlight: Generally, a statute of limitations is an affirmative defense that is waived if not pleaded.
Failure to file a brief by the adverse party may be deemed an admission that, in the opinion of party or counsel, the motion is meritorious. Even if an answer brief is not filed, the moving party must still demonstrate to the court that it is entitled to the relief requested.
In responding to a summary judgment motion, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, must be entered against the adverse party.
Under N.D.R.Civ.P. 59, the district court in its sound discretion may vacate a decision and grant a new trial if there is newly discovered material evidence that the party could not have discovered and produced at the trial with reasonable diligence.

Buchholz v. Barnes County Water Board (Consolidated w/20070326) 2008 ND 158
Docket No.: 20070325
Filing Date: 8/28/2008
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: Section 61-01-07, N.D.C.C., does not create a duty upon a downstream landowner to keep a watercourse free of naturally occurring vegetation.
Summary judgment is appropriate against a party who fails to establish the existence of a genuine factual dispute on an essential element of his claim and on which he will bear the burden of proof at trial.

State v. Rodriquez (Consolidated w/20070350) 2008 ND 157
Docket No.: 20070349
Filing Date: 8/28/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: When time spent in custody is credited toward an unrelated charge, the defendant is not entitled to have that time spent in custody applied to another sentence.

State v. Keener (consolidated w/20070265 & 20080016) 2008 ND 156
Docket No.: 20070252
Filing Date: 8/28/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: Claims of ineffective assistance of counsel are best raised in post-conviction proceedings to allow the parties to fully develop the record.
A defendant arguing ineffective assistance of counsel because of a conflict of interest caused by joint representation, who did not object to the joint representation, must show there was an actual conflict that adversely affected counsel's performance.
The court's failure to comply with N.D.R.Crim.P. 44, which requires the court to inquire into the propriety of joint representation, does not by itself require reversal.
Review of issues not raised below is limited to obvious error.
Restitution orders will not be reversed on appeal unless the district court abused its discretion.

City of Devils Lake v. Grove 2008 ND 155
Docket No.: 20070292
Filing Date: 8/28/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: If an investigative detention lasts too long or its manner of execution unreasonably infringes an individual's Fourth Amendment interests, it may no longer be justified as an investigative stop and, as a full-fledged seizure, must be supported by probable cause.
To determine whether an investigative detention has become a de facto arrest, this Court considers whether the invasion of an individual's Fourth Amendment interests is so minimally intrusive as to be justifiable on reasonable suspicion.
Officers are obligated to limit investigative methods employed during a traffic stop to the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time.

Kortum, et al. v. Johnson, et al. 2008 ND 154
Docket No.: 20070186
Filing Date: 8/28/2008
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: Close corporation shareholders owe one another a duty of utmost loyalty and good faith.
By signing a shareholder agreement, the shareholders of a close corporation do not bargain away the fiduciary duty owed to them by the corporation's other shareholders.
A shareholder agreement is presumed to reflect the reasonable expectations of a corporation's shareholders.
The threshold issue in a claim of shareholder oppression based on termination of employment is whether the terminated shareholder-employee had a reasonable expectation of continued employment.
A shareholder agreement providing for periodic reevaluation of share value signifies a bona fide intention on the part of both parties to enter into periodic negotiations; when the parties to the agreement have not reevaluated the shares as contemplated by the agreement, the remaining shareholders have the burden of showing they did not refuse in bad faith to enter into such negotiations.

City of Grand Forks v. Riemers 2008 ND 153
Docket No.: 20070379
Filing Date: 8/28/2008
Case Type: Appeal - Criminal - Misc. Traffic Violation
Author: Kapsner, Carol

Highlight: The right to appeal in this state is statutory, and there is no constitutional right to an appeal.
When a defendant has appealed a municipal court's decision on a noncriminal municipal traffic offense to district court for trial anew, the district court's decision may not be appealed to the Supreme Court.

State v. Gill (consolidated with 20070365 & 20070366) 2008 ND 152
Docket No.: 20070364
Filing Date: 8/28/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: The scope of the community caretaking function does not extend to include officers' entry into private residences.
The warrantless entry of law enforcement officers into a home presents a Fourth Amendment issue and should not be examined under the community caretaking doctrine.

Disciplinary Board v. Fisher 2008 ND 151
Docket No.: 20080198
Filing Date: 8/21/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspention of lawyer ordered.

Hutchinson v. Boyle (Consolidated w/20080010) 2008 ND 150
Docket No.: 20080009
Filing Date: 7/28/2008
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: Disorderly conduct does not include constitutionally protected activity.
A district court must address a respondent's constitutional claims before issuing a disorderly conduct restraining order.

Strand, et al. v. Cass County, et al. (Cross-Ref. w/20050380) 2008 ND 149
Docket No.: 20070168
Filing Date: 7/25/2008
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: When a party requests attorney's fees under N.D.C.C. 28-26-01(2), the court must first determine whether a claim is frivolous. If it determines the claim is frivolous, the court must then award reasonable attorney's fees to the prevailing party.
Under N.D.C.C. 28-26-31, a court is authorized to award attorney's fees for allegations and denials in any pleadings in court, made without reasonable cause and not in good faith, and found to be untrue.
Under Rule 11, N.D.R.Civ.P., a district court may award sanctions against an attorney or a represented party, or both, if they violate the rule's requirements.

Estate of Conley 2008 ND 148
Docket No.: 20070321
Filing Date: 7/23/2008
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: North Dakota recognizes the common law presumption that a lost or missing will is presumed to be revoked by the testator.
The party seeking to probate the lost or missing will must demonstrate, by a preponderance of the evidence, that the testator did not destroy or revoke the missing will animo revocandi.

Weigel, et al. v. Lee, et al. 2008 ND 147
Docket No.: 20070296
Filing Date: 7/21/2008
Case Type: Appeal - Civil - Malpractice
Author: Crothers, Daniel John

Highlight: A decedent's children are able to seek recovery of non-economic damages in a wrongful death action.

State v. Scholes 2008 ND 146
Docket No.: 20070316
Filing Date: 7/21/2008
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: The validity of a search warrant is reviewed using the totality-of-the-circumstances approach, considering all of the information for probable cause together and testing affidavits executed in support of a warrant in a commonsense and realistic fashion.
Suppression of evidence is not required for a violation of N.D.R.Crim.P. 41 absent a showing that the defendant was prejudiced, or that the violation was an intentional and deliberate disregard of the rule, or that the violation offends the Fourth Amendment.
To succeed on a challenge to a search warrant based on a claim that law enforcement officers omitted information in the supporting affidavit, the defendant must show: (1) that law enforcement officers omitted facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading; and (2) that the affidavit, if supplemented by the omitted information, would not have been sufficient to support a finding of probable cause.

State v. Rivet (Consolidated w/ 20080011) 2008 ND 145
Docket No.: 20080008
Filing Date: 7/21/2008
Case Type: Appeal - Criminal - Homicide
Author: VandeWalle, Gerald

Highlight: Prosecutor's use of a defendant's post-arrest silence after receiving Miranda warnings to impeach a defendant's exculpatory story, told for the first time at trial, violates the defendant's right to due process.
Although the right to remain silent is a personal constitutional right, under these circumstances, the violation of defendant's right to remain silent so impacted co-defendant's right to a fair trial as to necessitate a reversal of the co-defendant's judgment as well.

Estate of Thompson 2008 ND 144
Docket No.: 20070294
Filing Date: 7/21/2008
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: The existence of an oral contract is a question of fact.
An agreement for the sale of real property is invalid unless the agreement is in writing and subscribed by the party to be charged.
In the absence of a written agreement, a court may compel specific performance of any agreement for the sale of real property if there is part performance.
Part performance of an oral contract for the sale of land which exempts the contract from the statute of frauds and entitles a party to specific performance must be proven by evidence that it is clear and unequivocal and which leaves no doubt as to the terms, character, and existence of the contract.

Klose v. State (Cross-Ref. with 20010309 and 20050044) 2008 ND 143
Docket No.: 20070303
Filing Date: 7/21/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: Summary dismissal of an application for post-conviction relief is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.
Raising an issue in a second post-conviction application that could have been raised in a prior post-conviction application or other proceeding is a misuse of process.
To show ineffective assistance of post-conviction counsel, a post-conviction applicant must show post-conviction counsel's performance fell below an objective standard of reasonableness and the deficient performance prejudiced him.
A stipulation to certain factual elements of an offense is not a guilty plea.

State v. Lunde 2008 ND 142
Docket No.: 20070159
Filing Date: 7/21/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Evidence which is illegally seized in violation of the Fourth Amendment must be suppressed under the exclusionary rule; however, under the good-faith exception, evidence should not be excluded when an officer has acted in good faith upon objectively reasonable reliance on the magistrate's probable cause decision.
The good-faith inquiry focuses upon whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization.
The good-faith exception does not apply because the officer's reliance on the warrant is not objectively reasonable: (1) when the issuing magistrate was misled by false information intentionally or negligently given by the affiant; (2) when the magistrate totally abandoned her judicial role and failed to act in a neutral and detached manner; (3) when the warrant was based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable"; and (4) when a reasonable law enforcement officer could not rely on a facially deficient warrant.