Opinions

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.

State v. Torkelsen 2008 ND 141
Docket No.: 20070140
Filing Date: 7/21/2008
Case Type: Appeal - Criminal - Homicide
Author: Crothers, Daniel John

Highlight: Any evidence obtained as a result of illegally acquired evidence must be suppressed, unless it was not produced by exploiting the illegally acquired information.
In some cases voluntary consent to search may purge the taint of unlawful police activity.
There must be separate probable cause to issue a warrant that authorizes a nighttime search. If there is not separate probable cause to authorize a nighttime search, the evidence should be excluded unless an exception to the exclusionary rule applies.
A defendant must unequivocally invoke the right to represent himself, unless his conduct rises to the level of a functional equivalent of a voluntary waiver of the right to counsel.
A defendant must make a timely request to represent himself, and it is within the trial court's discretion to grant a request made after the trial begins.

Forum Communications Co. v. Paulson, et al. 2008 ND 140
Docket No.: 20080052
Filing Date: 7/7/2008
Case Type: Original Proceeding - Criminal - Writ of Supervision
Author: Maring, Mary

Highlight: The public and the media have a presumptive right of access to criminal trials, including preliminary jury questionnaires, that is not absolute and must be balanced against a defendant's right to a fair trial and jurors' privacy interests.
The presumption of criminal tiral openness can be overcome by any overriding interest and must be articulated with findings specific enough to permit effective review.
Any criminal trial closure must be narrowly tailored to serve the competing interests.

Carroll v. N.D. Workforce Safety & Insurance 2008 ND 139
Docket No.: 20070219
Filing Date: 7/7/2008
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: For the district court to acquire subject matter jurisdiction over an appeal from a decision of an administrative agency, the appellant must satisfy the statutory requirements for perfecting the appeal.
A workers compensation claimant disputing a managed care decision must appeal from a binding dispute resolution decision, and the decision is reviewable only if the employee has been denied medical treatment.

Lagerquist v. Stergo, et al. 2008 ND 138
Docket No.: 20070285
Filing Date: 7/2/2008
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: Agency is generally a question of fact.
Agency is never presumed, and if an agency relationship is denied, the party alleging agency must establish it by clear and convincing evidence.
On appeal, a finding of agency is reviewed under the clearly erroneous standard.
An agency relationship is created when one person, called the principal, authorizes another, called the agent, to act for the principal in dealing with third persons. Agency is either actual or ostensible.
Agency cannot be proved by showing the declarations of the alleged agent.

State v. Torkelsen (Consolidated w/20070372 & 20070373) 2008 ND 137
Docket No.: 20070369
Filing Date: 7/2/2008
Case Type: Appeal - Criminal - Sexual Offense
Author:

Highlight: Sexual assault convictions are summarily affirmed under N.D.R.App.P. 35.1(a)(3), the convictions are supported by substantial evidence.

Gerhardt, et al. v. C.K. (CONFIDENTIAL) 2008 ND 136
Docket No.: 20070282
Filing Date: 6/30/2008
Case Type: Appeal - Civil - Paternity
Author: Maring, Mary

Highlight: A proceeding to adjudicate parentage commenced before the effective date of the 2005 version of the Uniform Parentage Act is governed by the law in effect at the time the proceeding was commenced.
Section 14-17-10(1), N.D.C.C. (1993), does not require the court to compel genetic tests in response to a post-judgment motion.

State v. Blunt 2008 ND 135
Docket No.: 20070247
Filing Date: 6/30/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: Personal benefit to the defendant is not an element of the crime of misapplication of entrusted property.
At a preliminary hearing in a criminal case, the State is not required to prove with absolute certainty or beyond a reasonable doubt that a crime occurred, but need only produce sufficient evidence to establish probable cause that a crime occurred and that the defendant committed it.
The district court may consider credibility of witnesses at a preliminary hearing only when, as a matter of law, the testimony is implausible or incredible. When there is a mere conflict in the testimony, a question of fact exists for the jury, and the judge must draw the inference favorable to the prosecution.
A "bonus" is a premium paid in addition to what is due or expected, or a payment in addition to or in excess of the compensation that would ordinarily be given.

State v. Coppage 2008 ND 134
Docket No.: 20070304
Filing Date: 6/26/2008
Case Type: Appeal - Criminal - Homicide
Author: Maring, Mary

Highlight: A motion for a new trial not based on newly discovered evidence must be filed within ten days of the verdict under N.D.R.Crim.P. 33.
A jury verdict convicting a defendant of both attempted murder and aggravated assault is not legally inconsistent.
Aggravated assault is not a lesser-included offense of attempted murder, except under subsection 4 of section 12.1-17-02, N.D.C.C.
Unchallenged jury instructions become the law of the case.
A criminal defendant's actions need not result in a potentially fatal injury in order for the defendant to be convicted of attempted murder under N.D.C.C. 12.1-16-01(1)(b).

Sambursky v. State (CON w/20070178 thru 20070182) (Cross-Ref w/20050330-335) 2008 ND 133
Docket No.: 20070177
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: A defendant claiming ineffective assistance of counsel has a heavy burden of proving (1) counsel's representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel's deficient performance.
Whether a petitioner received ineffective assistance of counsel is a mixed question of law and fact and is fully reviewable on appeal.

Barros v. ND Dept. of Transportation 2008 ND 132
Docket No.: 20080066
Filing Date: 6/26/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: The Department of Transportation is not required to call all persons who have handled a blood sample to establish a chain of custody for the sample. To establish chain of custody and introduce the results of a blood test, the Department's must show that the sample tested is the same one originally drawn from the defendant.

Interest of K.L. and M.S. (CONFIDENTIAL)(consolidated w/20070310) 2008 ND 131
Docket No.: 20070309
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Juvenile Law
Author: Kapsner, Carol

Highlight: A juvenile court's decision to terminate parental rights is a question of fact that will not be overturned unless the decision is clearly erroneous.
The State cannot rely on past deprivation alone, but must provide prognostic evidence, Ademonstrating the deprivation will continue.
A claim for ineffective assistance of counsel in termination proceedings is recognized, but the necessary evidence of the claim must appear on the face of the record and a case will not be remanded for the purpose of developing a record to support the claim.

Matter of E.W.F. (Confidential) 2008 ND 130
Docket No.: 20080037
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: Civil commitments of sexually dangerous individuals are reviewed under a modified clearly erroneous standard and will be affirmed unless the district court's order is induced by an erroneous view of the law, or we are firmly convinced the order is not supported by clear and convincing evidence.
In addition to the three requirements contained in the plain language of the statute governing sexually dangerous individual commitments, substantive due process rights require the individual facing commitment must be shown to have serious difficulty controlling his behavior.
In a civil proceeding, a party's failure to offer evidence refuting or otherwise explaining the opposing party's witness testimony warrants the inference that the opposing party's witness's statements were true and correct.

Laib v. Laib 2008 ND 129
Docket No.: 20070079
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: When the district court in a divorce proceeding has made specific findings that the domestic violence presumption against an award of custody has been triggered and the perpetrator has failed to rebut the presumption, the court may not later change custody to the perpetrator unless the court finds by clear and convincing evidence that the presumption has been rebutted.
A motion for relief from a judgment is not a substitute for an appeal.

Adoption of C.D. (CONFIDENTIAL) 2008 ND 128
Docket No.: 20070171
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Adoption
Author: VandeWalle, Gerald

Highlight: An Indian tribe's determinations of its own membership and eligibility for membership are binding and conclusive in a proceeding under the Indian Child Welfare Act ("ICWA").
The burden of proof is upon the party asserting ICWA's applicability to present evidence that the child is an "Indian child" as defined in 25 U.S.C. section 1903(4).
Allegations in pleadings, motions, or briefs are not evidence.
For purposes of applying ICWA, membership in a tribe is not synonymous with enrollment as a member of a tribe, and a party may be a member of a tribe without being enrolled in the tribe.
ICWA applies only to tribal Indians, and does not extend to ethnic Indians who are not eligible for membership in a federally recognized Indian tribe.

Allen v. State 2008 ND 127
Docket No.: 20080025
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Denial of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

State v. Everett 2008 ND 126
Docket No.: 20070074
Filing Date: 6/26/2008
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (3).

O'Connor v. Jensen 2008 ND 125
Docket No.: 20080035
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Amended judgment modifying child support obligation is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Murphy v. State 2008 ND 124
Docket No.: 20070375
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Ernst (Cross-reference 20040117 & 20060250) 2008 ND 123
Docket No.: 20070359
Filing Date: 6/26/2008
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: Order revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Huber (Consolidated w/20080059) 2008 ND 122
Docket No.: 20080058
Filing Date: 6/26/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author:

Highlight: Criminal judgments for DUI and DUS are summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

State v. Mastre 2008 ND 121
Docket No.: 20080029
Filing Date: 6/26/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A criminal judgment for terrorizing is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Mayer 2008 ND 120
Docket No.: 20080046
Filing Date: 6/26/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Conviction for possessing marijuana, methamphetamine, and drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

State v. Schmeets (Consolidated w/20070361) 2008 ND 119
Docket No.: 20070360
Filing Date: 6/26/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Order revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4), and remanded to correct clerical errors.

Riemers, et al. v. State, et al. 2008 ND 118
Docket No.: 20070307
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author:

Highlight: A district court judgment awarding attorney fees for a prior appeal is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Red River Wings, Inc. v. Hoot, Inc. (Consolidated w/20070088 & 20070089) 2008 ND 117
Docket No.: 20070087
Filing Date: 6/20/2008
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: Unambiguous contracts are particularly amenable to summary judgment.
Limited partners who participate in the business of the partnership or act in concert with the general partner are subject to the fiduciary duties of good faith, fair dealing, loyalty, and care applicable to partners in a general partnership.
Whether a person has breached a fiduciary duty is a question of fact.
Majority limited partners who control or act in concert with the general partner can be held personally liable to minority limited partners for damages for breach of fiduciary duties.
In the breach of a partnership contract by wrongful dissolution, the damages recoverable include the value of the profits the plaintiff otherwise would have received had the partnership not been wrongfully dissolved.
District courts are considered experts in determining what is a reasonable amount of attorney fees, and an award will not be reversed absent a clear abuse of discretion.
Whether interference with a contractual relationship is justified is a question of fact.
The doctrines of frustration of purpose and impossibility do not apply if the frustration or impossibility is caused by a party to the contract.
When an agreement does not specify an interest rate, the rate for prejudgment interest is 6 percent from the time the right to recover vested.

Baukol Builders v. County of Grand Forks 2008 ND 116
Docket No.: 20060120
Filing Date: 6/9/2008
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A party cannot seek the benefits of a transaction under the law and thereafter challenge the validity of the transaction.
A governing body has some discretion to award a public improvement construction contract to the lowest responsible bidder.
In assessing the lowest responsible bidder, a governing body may consider the prospective bidder's ability, capacity, reputation, experience, and efficiency.
Absent statutory or contractual authority, each party to a lawsuit bears its own attorney fees.

Peterson v. Ziegler 2008 ND 115
Docket No.: 20070275
Filing Date: 6/9/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: Maring, Mary

Highlight: Generally, the time computation rules in N.D.R.Civ.P. 6 apply to an appeal from an administrative agency decision unless the provisions of the rule conflict with a governing statute.
A driver is not harmed by a law enforcement officer's failure to give the implied consent advisory before the driver consents to a chemical test.

Burlington Northern v. Fail, et al. 2008 ND 114
Docket No.: 20070212
Filing Date: 6/9/2008
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: The area of land covered by the easement, servitude, or nonappurtenant restriction on the use of real property shall be properly described and shall set out the area of land covered by the interest in real property.
A reservation must be clearly expressed in a deed and described with enough certainty so it can be identified as to its location.

Olson v. State 2008 ND 113
Docket No.: 20070071
Filing Date: 6/5/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: A petitioner seeking post-conviction relief through DNA testing of evidence must present a prima facie case showing the evidence to be tested has been subject to a sufficient chain of custody.
To establish a prima facie case, the petitioner must present testimony or otherwise show that evidence still exists and has not been substituted, tampered with, replaced, or altered in any material respect.

Overboe v. Brodshaug 2008 ND 112
Docket No.: 20070263
Filing Date: 6/5/2008
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: A motion to vacate a default judgment is addressed to the sound discretion of the district court.
A statute of limitation does not defeat defensive recoupment, which must arise out of the same transaction that is the subject matter of the plaintiff's action and can only be used to reduce or avoid the plaintiff's recovery.
Interest before maturity is compensation for the use of money and is regulated by usury statutes, while interest allowed after maturity is considered compensation for damages for the wrongful detention of money and is not regulated by the usury statutes.

Lawrence v. Delkamp 2008 ND 111
Docket No.: 20070131
Filing Date: 6/5/2008
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: Rule 43(a), N.D.R.Civ.P., permits, and does not mandate, courts to allow presentation of testimony by contemporaneous transmission.
The admissibility of telephonic testimony is conditioned on good cause in compelling and unexpected circumstances and the availability of appropriate safeguards.
It is within the district court's discretion to deny a party's request to allow telephonic testimony in the absence of appropriate safeguards, and it is within the district court's discretion to determine that having someone onsite to administer an oath or affirmation is an appropriate safeguard required for the admissibility of telephonic testimony.

Wheeler v. State (consolidated w/20070164 & 20070165) 2008 ND 109
Docket No.: 20070163
Filing Date: 6/5/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: An applicant for post-conviction relief has the burden of establishing grounds for relief.
A district court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
In a post-conviction proceeding, the district court, for good cause, may grant leave to either party to use the discovery procedures available in criminal or civil proceedings. Discovery procedures may be used only to the extent and in the manner the court has ordered or to which the parties have agreed.

State v. Curtis (cross ref. 20070249 & 20070333) 2008 ND 108
Docket No.: 20070250
Filing Date: 6/5/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: A criminal defendant's Sixth Amendment right to compulsory process is not absolute, and does not guarantee the right to secure the attendance and testimony of any and all witnesses.
A defendant alleging a violation of his right to compulsory process has the burden of showing that the testimony would have been both favorable and material to his defense.
The civil dispute doctrine, which allows a court to dismiss criminal proceedings if the matter should have been adjudicated civilly, is limited to cases where there is a legitimate property or contract dispute that is better suited for resolution in a civil matter.

B.L.L., et al. v. W.D.C. (CONFIDENTIAL) 2008 ND 107
Docket No.: 20070324
Filing Date: 6/5/2008
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Crothers, Daniel John

Highlight: Whether a child has been abandoned is a question of fact.
Non-custodial parents abandon their children if they fail, without justifiable cause, to communicate with the child or to provide for the care and support of the child as required by law.
While imprisonment alone is not sufficient to constitute intentional abandonment, imprisonment when combined with other factors, such as parental neglect and withholding parental affection, may support a finding that the parent had relinquished all parental claims and thereby abandoned the child.

Guardianship/Conservatorship of V.J.V.N. 2008 ND 106
Docket No.: 20080024
Filing Date: 6/5/2008
Case Type: Appeal - Civil - Guardian/Conservator
Author: Kapsner, Carol

Highlight: The district court has discretionary authority regarding the management of a protected person's estate, and the court's decisions on those matters will be reversed on appeal only for an abuse of discretion.
When the Supreme Court interprets statutes, its duty is to ascertain the legislative intent, which initially must be sought from the statutory language itself, giving it its plain, ordinary, and commonly understood meaning.

Richter v. ND Dept. of Transportation 2008 ND 105
Docket No.: 20080036
Filing Date: 6/5/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: Evidence that is excludable on constitutional grounds may be excluded by an administrative agency upon proper objection.

Alerus Financial, N.A., et al. v. Western State Bank, et al. 2008 ND 104
Docket No.: 20070066
Filing Date: 6/5/2008
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: In construing a trust agreement, the court's primary objective is to ascertain the settlor's intent.
A power of attorney is an instrument in writing authorizing another to act as one's agent, and the agent holding the power of attorney is the attorney-in-fact.
An agency relationship involves both a contractual and a fiduciary relationship, and the interpretation of an agent's authority is governed by the rules for construing contracts, except to the extent the fiduciary relationship requires a different rule.

State v. Hernandez 2008 ND 103
Docket No.: 20070380
Filing Date: 6/5/2008
Case Type: Appeal - Criminal - Sexual Offense
Author:

Highlight: A district court order revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Suelzle v. ND Dept. of Transportation 2008 ND 102
Docket No.: 20080030
Filing Date: 6/5/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: Per Curiam

Highlight: Revocation of driving privileges summarily affirmed under N.D.R.App.P. 35.1(a)(5).