Opinions

State v. Hahne 2007 ND 116
Docket No.: 20070013
Filing Date: 7/25/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: A Fourth Amendment "seizure" occurs when a vehicle is stopped by police at a checkpoint. The basic question is whether the seizure is reasonable. If the seizure is reasonable, then it is constitutional.
Temporary law enforcement checkpoints or roadblocks established for particular public purposes are, in general, constitutional.
A court applies a three-part test to analyze the reasonableness of a law enforcement checkpoint: (1) a weighing of the gravity of the public concerns served by the seizure; (2) the degree to which the seizure advances the public interest; and (3) the severity of the interference with individual liberty.
Law enforcement checkpoints need not, as a matter of law, provide motorists with a way to avoid them. When considering the constitutional reasonableness of a checkpoint, avoidability is one factor that may be considered in evaluating the intrusion on the personal liberty of individual motorists.

Interest of B.B. (Confidential) 2007 ND 115
Docket No.: 20060322
Filing Date: 7/25/2007
Case Type: Appeal - Civil - Juvenile Law
Author: Kapsner, Carol

Highlight: To satisfy the business records exception to the hearsay rule, each participant in the creation of the record must be acting in the course of regularly conducted business.
The Sixth Amendment right to confront and cross-examine witnesses does not apply to civil proceedings.
A party in a deprivation proceeding in juvenile court is entitled to the opportunity to cross-examine adverse witnesses.
A juvenile court's finding of deprivation will not be set aside on appeal unless clearly erroneous.

State v. Holbach 2007 ND 114
Docket No.: 20060297
Filing Date: 7/25/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: A specific on-the-record colloquy is not necessary to establish the validity of a defendant's waiver of the right to counsel if the record establishes the defendant voluntarily, knowingly, and intelligently waived the right to counsel.

State v. Edwards 2007 ND 113
Docket No.: 20060254
Filing Date: 7/25/2007
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: A sentencing court may correct an illegal sentence at any time.

Roth v. State (Cross-Ref. w/20050227) 2007 ND 112
Docket No.: 20060241
Filing Date: 7/25/2007
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: To prove an ineffective assistance claim based on counsel's failure to move to suppress evidence, the petitioner must show that he would have prevailed on the suppression motion and that there is a reasonable probability the successful motion would have affected the outcome.
The "reasonable cause" standard contained in N.D.R.Crim.P. 41(c)(1)(E) focuses on the necessity for executing the search warrant in the nighttime rather than in the daytime.
A nighttime searches may be upheld when there is particularized evidence of drug trafficking, sales, or manufacture which occurred late at night or in the early morning hours.

Interest of J.C. (Confidential) 2007 ND 111
Docket No.: 20060341
Filing Date: 7/25/2007
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Kapsner, Carol

Highlight: In a proceeding to terminate parental rights, a juvenile court's decision to grant or deny a continuance is addressed to the court's discretion.
A juvenile court may not declare a parent in default and terminate parental rights without some evidentiary basis in the record to support the termination.

Weigel v. Weigel 2007 ND 110
Docket No.: 20070003
Filing Date: 7/25/2007
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: Property division in a divorce judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (7).

State v. Boyle 2007 ND 109
Docket No.: 20070057
Filing Date: 7/25/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: A conviction for operating a motor vehicle without liability insurance is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Friedt 2007 ND 108
Docket No.: 20060276
Filing Date: 7/5/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: On appeal, a constitutional question will not be decided if the dispute can be resolved on other grounds.
A trial court's admission or exclusion of evidence will not be overturned on appeal unless the trial court has abused its discretion.
An adequate foundation may be established by testimony that identifies the evidence and establishes the competency, materiality, and relevancy of the evidence.

Estate of Elken 2007 ND 107
Docket No.: 20060331
Filing Date: 7/2/2007
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: The term "includes" in a statutory definition is a word of enlargement and not a term of limitation.
A reasonably ascertainable creditor entitled to actual notice of the time for making a claim against a decedent's estate is a creditor that a personal representative can uncover with reasonably diligent efforts.

Helfenstein v. Schutt 2007 ND 106
Docket No.: 20060383
Filing Date: 6/29/2007
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: Family therapy may not be denied on the basis of the recommendation of experts unless the party seeking family therapy has been given the opportunity to cross-examine the experts.

Disciplinary Board v. Sletten 2007 ND 105
Docket No.: 20070184
Filing Date: 6/27/2007
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

Scheer v. Altru Health System, et al. 2007 ND 104
Docket No.: 20060333
Filing Date: 6/26/2007
Case Type: Appeal - Civil - Malpractice
Author: Sandstrom, Dale

Highlight: A dismissal without prejudice is ordinarily not appealable; however, a dismissal without prejudice may be final and appealable if the plaintiff cannot cure the defect that led to dismissal, or if the dismissal has the practical effect of terminating the litigation in the plaintiff's chosen forum.
North Dakota's medical malpractice law requires a plaintiff to serve the defendant with an admissible expert affidavit that supports a prima facie case of malpractice within three months of serving the summons.
The trial court may set a later date for serving the affidavit for good cause shown by the plaintiff.
The trial court must dismiss the case without prejudice, on motion by the defendant, for a plaintiff's failure to timely serve the affidavit or move for good cause.
A plaintiff may move for good cause as late as in response to the defendant's motion to dismiss.

Good Bird v. Twin Buttes School District, et al. 2007 ND 103
Docket No.: 20070041
Filing Date: 6/26/2007
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Maring, Mary

Highlight: The party resisting a summary judgment motion may not simply rely upon the pleadings or upon unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact.
A contract is either express or implied. An express contract is one the terms of which are stated in words. An implied contract is one the existence and terms of which are manifested by conduct. Under contracts implied in fact, the court merely attempts to determine from the surrounding circumstances what the parties actually intended.
Public employees who have legitimate expectations of continued government employment possess property interests of which they cannot be deprived without due process.

Interest of D.C.S.H.C. (CONFIDENTIAL)(CONSOLIDATED w/20060338) 2007 ND 102
Docket No.: 20060337
Filing Date: 6/26/2007
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Sandstrom, Dale

Highlight: The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.
A prisoner's due process rights are generally satisfied if the prisoner is represented at a parental-rights-termination hearing by counsel and has an opportunity to appear by deposition or other discovery technique.
In general, there is no denial of due process when the parent testifies at a termination hearing by telephone and is represented by court-appointed counsel during the proceeding.
A North Dakota district court does not have authority to order another state to allow a prisoner to appear in a civil case.

Wagner v. Wagner 2007 ND 101
Docket No.: 20060228
Filing Date: 6/26/2007
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: After including all of the parties' marital assets, the court must consider the Ruff-Fischer guidelines in its distribution of the parties' assets.
A long-term marriage supports an equal distribution of property. Liquidation of an ongoing farming operation is ordinarily a last resort.
Property division and spousal support are interrelated and intertwined and often must be considered together.

State v. Voigt 2007 ND 100
Docket No.: 20060271
Filing Date: 6/26/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: A double jeopardy claim is timely if it is raised before or during trial proceedings.
Jeopardy attaches in a jury trial when the jury is empaneled and sworn.
Nonexclusive factors for determining whether termination of a criminal trial is supported by manifest necessity include: 1) whether counsel were afforded an opportunity to be heard on the issue; 2) whether alternatives to a mistrial were explored; and 3) whether the judge's decision was made after sufficient reflection.
Mistrials declared with the defendant's consent generally do not bar later prosecutions.
A terminating event occurs under the "continuing jeopardy" doctrine if a trial before a new tribunal reasonably implicates the policies of the double jeopardy clause.

State v. Fehl-Haber 2007 ND 99
Docket No.: 20060086
Filing Date: 6/26/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: A district court has broad discretion in evidentiary matters, and its decision to admit or exclude evidence will not be overturned unless there has been an abuse of discretion.
In a criminal trial, all communications with the jurors after the jurors have retired for deliberations must be made in open court and in the presence of the defendant.
A criminal defendant may waive the right to have all communications with the jurors made after the case has been submitted to them by failing to object to the trial court's procedure in responding to the jury's request.
To prevail on a motion for a new trial on the ground of newly discovered evidence, the defendant must show: (1) the evidence was discovered after trial, (2) the failure to learn about the evidence at the time of trial was not the result of the defendant's lack of diligence, (3) the newly discovered evidence is material to the issues at trial, and (4) the weight and quality of the newly discovered evidence would likely result in an acquittal.
Where a sexual assault victim's credibility is not in issue, evidence that the victim made a similar accusation against another individual is immaterial and not likely to result in an acquittal.

State v. Flatt 2007 ND 98
Docket No.: 20060330
Filing Date: 6/26/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: Elements to an offense cannot be retroactively applied unless the Legislature expressly declares its intention to do so.
A charging document must sufficiently describe an offense based on the law in effect at the time the conduct occurred.
A defendant is not entitled to relief based on defective charging documents if the documents sufficiently allege an offense, based on the law in effect at the time the criminal conduct occurred, and the district court has jurisdiction over the matter.

State v. Silbernagel 2007 ND 97
Docket No.: 20070007
Filing Date: 6/26/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Denial of motion to suppress evidence is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (3).

Moore v. State 2007 ND 96
Docket No.: 20060224
Filing Date: 6/26/2007
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: Post-conviction relief may be granted when "[e]vidence, not previously presented and heard, exists requiring vacation of the conviction or sentence in the interest of justice."
When a defendant applies for post-conviction relief to withdraw a guilty plea, the application is treated as one made under N.D.R.Crim.P. 32(d), and withdrawal is allowed when necessary to correct a manifest injustice.

Interest of C.R., a child CONFIDENTIAL 2007 ND 95
Docket No.: 20070017
Filing Date: 6/26/2007
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

City of Minot v. Holbach 2007 ND 94
Docket No.: 20070042
Filing Date: 6/26/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Conviction of criminal trespass is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Enno 2007 ND 93
Docket No.: 20060273
Filing Date: 6/26/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: A judgment entered after a jury convicted the defendant of violating a disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Hernandez v. State 2007 ND 92
Docket No.: 20070051
Filing Date: 6/26/2007
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).

Olsrud v. Bismarck-Mandan Orchestral Association 2007 ND 91
Docket No.: 20060239
Filing Date: 6/12/2007
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: N.D.R.Civ.P. 5 applies to pleadings after the original complaint is served and the court acquires personal jurisdiction over the defendant, while N.D.R.Civ.P. 4 applies to a court's exercise of personal jurisdiction over a defendant and how service of process may be made.
A plaintiff has the burden of establishing that authority to receive service of process exists between a defendant and the individual served.
A party waives an argument by not providing supporting argument, and without supporting reasoning or citation to relevant authorities, an argument is without merit.

State ex rel. Stenehjem v. Philip Morris Inc., et al. (consol. w/20060213) 2007 ND 90
Docket No.: 20060207
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: The de novo standard of review applies to an appeal from the denial of a motion to compel arbitration, unless the district court's decision was based on factual findings, in which case the clearly erroneous standard applies.
Use of the words, "including, without limitation," reflects a contrary intention that an enumeration is not exhaustive, rendering the doctrine of ejusdem generis inapplicable.
The plain and unambiguous language of the tobacco master settlement agreement requires arbitration of a dispute over application of the diligent enforcement exemption to the non-participating manufacturer adjustment.

State v. Falconer 2007 ND 89
Docket No.: 20060210
Filing Date: 6/7/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: A defendant is entitled to a self-defense jury instruction if there is evidence to support it.
A defendant does not have standing to challenge a grant of immunity to another person.
An accomplice's testimony must be corroborated by independent evidence that tends to connect the defendant with the crime.

D.G.L. Trading Corp. v. Reis 2007 ND 88
Docket No.: 20070052
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: The general rule that questions not raised before the district court will not be considered on appeal cannot be applied so narrowly as to affirm erroneous or incomplete applications of law in favor of judicial expediency.
U.C.C. provisions allow parties to make separate contracts regarding the return terms and risk of loss.

State v. Dennis 2007 ND 87
Docket No.: 20060265
Filing Date: 6/7/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Consistent with the presumption that compliance with the constitutions of the state and of the United States is intended, criminal statutes are strictly construed in favor of the defendant and against the government.
When a form of conduct, the manner of its performance and operation, and the persons and things to which it refers are designated, there is an inference that all omissions should be understood as exclusions.
N.D.C.C. 19-03.1-23.1(1)(a) provides an offense enhancement only for the manufacture or distribution of a controlled substance within one thousand feet of a school.

State v. Albaugh 2007 ND 86
Docket No.: 20060334
Filing Date: 6/7/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: An expectation of privacy in commercial property where the public is apparently welcome is different from, and less than, a similar expectation in an individual's home.
Plain view is a recognized exception to the search warrant requirement, which allows law enforcement to seize a clearly incriminating object without a warrant if the officers are lawfully in a position from which they view an object and the object's incriminating character is immediately apparent.
A search incident to an arrest is a recognized exception to the search warrant requirement, which allows an arresting officer to lawfully search the area within the arrestee's immediate control.
Consent is a recognized exception to the search warrant requirement, so long as the consent is given freely and voluntarily, without any threats or promises having been made.

Cline v. Cline 2007 ND 85
Docket No.: 20060249
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A stipulation which results in a child support obligation less than that required by the child support guidelines violates public policy and will not be enforced.
When an obligor has been awarded extended visitation, as defined under the guidelines, adjustment to child support to reflect that visitation must be made in accordance with the guidelines.
When an obligor has a reduced ability to pay child support because of travel expenses incurred for child visitation, any adjustment must be made to the obligor's net income in computing child support.

Dietz v. Dietz 2007 ND 84
Docket No.: 20060229
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: To obtain an evidentiary hearing on a motion for a custody modification, the party seeking the custody modification must file moving papers and supporting affidavits that establish a prima facie case justifying the modification.
If the party opposing a motion to modify custody presents counter affidavits which conclusively establish the moving parties' allegations have no credibility, or even if uncontradicted the parties' allegations are insufficient on their face to justify a custody modification, the court may find the moving party has not established a prima facie case for modification and may deny the motion without an evidentiary hearing.
A party bringing a contempt proceeding is entitled to a hearing unless the party voluntarily, intentionally, or knowingly waives the hearing.

Interest of A.S. and N.S. (CONFIDENTIAL) 2007 ND 83
Docket No.: 20060256
Filing Date: 6/7/2007
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: The particular facts and circumstances of each case are considered when reviewing a juvenile court's decision on a motion for continuance because there is not a mechanical test to determine whether the juvenile court abused its discretion.
The juvenile court's decision to terminate parental rights is a question of fact that will not be overturned unless the decision is clearly erroneous.
To prevent or eliminate the need for removing a child from its home and to make it possible for a child to return safely to its home, reasonable efforts to preserve and reunite families must be made before the placement of a child in foster care.

State v. Noack 2007 ND 82
Docket No.: 20060237
Filing Date: 6/7/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: A self-represented litigant is subject to the rules of appellate procedure and must reasonably comply with them to obtain judicial review.
It is essential that litigants provide a statement of the issues to be reviewed, a statement of the facts, and an argument section to obtain judicial review.

Lynch v. Sweeney 2007 ND 81
Docket No.: 20060104
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: In visitation disputes, a district court must award a noncustodial parent reasonable costs and attorney fees if the court finds there has been willful and persistent denial of visitation rights by the custodial parent.
A district court's decision about the reasonableness and amount of attorney fees to award will not be overturned on appeal absent an abuse of discretion.

State by Workforce Safety v. JFK Raingutters, et al. 2007 ND 80
Docket No.: 20060196
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Insurance
Author: VandeWalle, Gerald

Highlight: North Dakota's workers compensation laws apply to an Indian employer and his state-chartered company, and to work projects occurring on the reservation.
Administrative res judicata applies to final agency orders.

Dvorak v. Dvorak, et al. 2007 ND 79
Docket No.: 20060050
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: When a post-decision motion is made in a civil case, and a notice of appeal is filed before it is decided, a party who wants the disposition of the motion reviewed on appeal must file either an amended notice of appeal or a separate notice of appeal from the order deciding the motion.
An obligor whose child support obligation is delinquent cannot disclaim any interest that obligor might have in a trust, and his attempt to assign or otherwise disclaim the interest is voidable. Any attempt to disclaim the interest after notice of delinquency is furnished to the person administering the trust is absolutely void.
Under agency principles, notice to an attorney, on matters for which the attorney is acting for the client, is notice to the client.

Finley v. ND Dept. of Transportation 2007 ND 78
Docket No.: 20070020
Filing Date: 6/7/2007
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: The Department of Transportation's decision to revoke driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. Tutt 2007 ND 77
Docket No.: 20060205
Filing Date: 6/7/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Standing alone, a statutory minimum sentence is not an "element" of the offense.
The U.S. Supreme Court has rejected the argument that the fact of a prior conviction must be found by a jury.

State v. Paul 2007 ND 76
Docket No.: 20070025
Filing Date: 6/7/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: A district court's judgment for driving while under suspension and an order granting the State's motion in limine are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Rydell GM Auto Center v. Johnson 2007 ND 75
Docket No.: 20070037
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: An order denying a party's request to vacate default judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Interest of L.J. and G.J. (Confidential) 2007 ND 74
Docket No.: 20060376
Filing Date: 6/7/2007
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Not Available

Highlight: An order terminating a father's parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Mantz v. Mantz 2007 ND 73
Docket No.: 20060365
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A second amended judgment modifying a child support obligation is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

White Mountain v. State 2007 ND 72
Docket No.: 20060357
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

State v. Alexander 2007 ND 71
Docket No.: 20060363
Filing Date: 6/7/2007
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Convictions of unlawful entry into a vehicle are summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Deraas v. Workforce Safety and Insurance, et al. 2007 ND 70
Docket No.: 20070016
Filing Date: 5/9/2007
Case Type: Appeal - Administrative - Workers Compensation
Author: Per Curiam

Highlight: District court judgment affirming a Workforce Safety & Insurance order is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

Chamley v. Khokha, et al. 2007 ND 69
Docket No.: 20060261
Filing Date: 5/8/2007
Case Type: Appeal - Civil - Malpractice
Author: Marquart, Steven

Highlight: Any person rendering aid or assistance with an expectation of remuneration is not protected by North Dakota's Good Samaritan Act.
A doctor who is a salaried employee of a hospital and performs a procedure in the hospital has an expectation of remuneration.

State v. Rogers 2007 ND 68
Docket No.: 20060300
Filing Date: 5/8/2007
Case Type: Appeal - Criminal - Misc. Felony
Author: Maring, Mary

Highlight: When deciding the sufficiency of the evidence, the evidence and all reasonable inferences are viewed in the light most favorable to the prosecution, and this Court determines whether a rational factfinder could have found guilt beyond a reasonable doubt. Only if the evidence is insufficient to sustain a conviction will this Court allow a judgment of acquittal.
An unchallenged jury instruction becomes the law of the case.
The Double Jeopardy Clause bars retrial when the prosecution has failed to produce sufficient evidence to prove its case.
For the purposes of N.D.C.C. 12.1-22-03(1), and based on the ordinary meanings of the statutory words, "dwelling" includes a hotel room.
For an offense to be a lesser-included offense, it must be impossible to commit the greater offense without committing the lesser.

WFND, LLC v. Fargo Marc, LLC 2007 ND 67
Docket No.: 20060125
Filing Date: 5/7/2007
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: A motion to amend a complaint under N.D.R.Civ.P. 15(a) and a motion for voluntary dismissal under N.D.R.Civ.P. 41(a)(2) lie within the sound discretion of the district court and will not be reversed on appeal absent an abuse of discretion.
A breach of contract is the nonperformance of a contractual duty when it is due, and the burden of proving the elements of a breach of contract is on the party asserting the breach.
Mixing principles of tort and contract law and using tort terminology to describe a breach of contract is improper.
Fraud applies when there is a contract between the parties and deceit applies when there is no contract between the parties.
An intent to defraud usually is not susceptible of direct proof, and can be established by circumstantial evidence.
The award of damages will be sustained on appeal if it is within the range of the evidence presented to the trier of fact.
A district court is not required to accept the undisputed testimony of an expert witness.
A written contract may be modified by an executed oral agreement.
The parol evidence rule does not preclude proof of the existence of a separate oral stipulation or agreement concerning any matter on which the written contract is silent, and which is not inconsistent with its terms.
Successful litigants are not allowed to recover attorney fees unless authorized by statute or by contract.
When opposing parties each prevail on some of their claims, there is no single prevailing party for whom disbursements may be taxed.
Disbursements listed in N.D.C.C. 28-26-06 may be awarded as discretionary costs under N.D.C.C. 28-26-10.