Sambursky v. State
, 2008 ND 133,
751 N.W.2d 247
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.
Bateman v. City of Grand Forks
, 2008 ND 72,
747 N.W.2d 117
A court's review of special assessments for local improvements is limited to assuring that local taxing authorities do not act arbitrarily, capriciously, or unreasonably.
Special assessments for local improvements are presumed valid, and the burden is on the party challenging the validity to demonstrate they are invalid.
A special assessment against any property must not exceed the benefit the property receives from the improvement.
A special assessment commission has broad discretion to choose the method used to decide benefits and assess individual properties.
Erickson v. Brown
, 2008 ND 57,
747 N.W.2d 34
A complaint is construed in the light most favorable to the plaintiff and may not be dismissed for failure to state a claim unless it discloses with certainty the impossibility of proving a claim upon which relief can be granted.
A claim for fraud applies to parties to a contract while a claim for deceit applies where there is no contract between the parties.
A promise made without any intention of performing may be deceit.
Legal issues entitling a party to a jury trial are tried to a jury before disposition of equitable issues triable to the court, and whenever the issues are so interrelated that a decision in the nonjury portion might affect the decision of the jury
portion, the jury portion must be tried first.
There is no implied covenant of good faith and fair dealing in the employment context.
Nonprejudicial errors constitute harmless error and are not grounds for reversal.
State v. Haugen
, 2007 ND 195,
742 N.W.2d 796
Carrying a loaded firearm in a vehicle is a strict liability offense, punishable without regard to intent, knowledge, willfulness, or negligence.
An appellant assumes the consequences and risks for failure to file a complete transcript, and an issue will not be reviewed if the record on appeal does not allow for a meaningful and intelligent review of the alleged error.
State v. Edwards
, 2007 ND 113,
736 N.W.2d 449
A sentencing court may correct an illegal sentence at any time.
State v. Noack
, 2007 ND 82,
732 N.W.2d 389
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.
State v. Olson
, 2007 ND 40,
729 N.W.2d 132
Permissible types of law enforcement-citizen encounters include: (1) arrests, which must be supported by probable cause; (2) Terry stops, seizures which must be supported by a reasonable and articulable suspicion of criminal activity; and (3)
community caretaking encounters, which are not Fourth Amendment seizures.
Under Terry, police may, in appropriate circumstances and in an appropriate manner, detain an individual for investigative purposes when there is no probable cause to make an arrest if a reasonable and articulable suspicion exists that
criminal activity is afoot.
The "lateness of the hour" is another factor that may raise the level of suspicion sufficient to justify an investigative stop.
State v. Brossart
, 2007 ND 39,
729 N.W.2d 137
A conviction rests upon insufficient evidence only when no rational factfinder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the
benefit of all inferences reasonably to be drawn in its favor
The proper remedy for addressing claims of unlawful police conduct is allowing the defendant to raise the issue to the factfinder and offer his resistance as a justification defense to the preventing-arrest charge.
Sambursky v. State
, 2006 ND 223,
723 N.W.2d 524
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.
If the petitioner raises an issue of material fact in resisting summary dismissal of an application for post-conviction relief, the petitioner is entitled to an evidentiary hearing on the matter.
In a post-conviction relief proceeding alleging the ineffective assistance of counsel with respect to a guilty plea, counsel is ineffective if a claimant can show that counsel's performance fell below an objective standard of reasonableness and there
is a reasonable probability that, but for counsel's errors, the petitioner would not have pleaded guilty and would have insisted on going to trial.
State v. Graf
, 2006 ND 196,
721 N.W.2d 381
Warrantless searches inside an individual's home are presumptively unreasonable, but searches inside an individual's home are not unreasonable if the search falls under one of the well-delineated exceptions to the warrant requirement.
Consent to search is an exception to the warrant requirement.
Consent to search purges the taint of prior unlawful police activity if the consent was voluntary under the totality of the circumstances and if the taint of the prior unlawful activity is purged, considering the temporal proximity between the
illegal search and the consent, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct.
Consultation with an attorney may purge the taint of prior unlawful police activity.
State v. Iverson
, 2006 ND 193,
721 N.W.2d 396
A statute authorizing credit for time served in custody cannot be retroactively applied after a person has been finally convicted.
Korynta v. Korynta
, 2006 ND 17,
708 N.W.2d 895
When calculating child support, a trial court must not base its child support award on an extrapolation of an obligor's future income, unless evidence of the obligor's recent past circumstances are not a reliable indicator of his future
circumstances.
Interest of B.M.
, 2005 ND 78,
704 N.W.2d 286
A judgment terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
Larsen v. ND Dept. of Transportation
, 2005 ND 51,
693 N.W.2d 39
In interpreting a statute, a court may not disregard the letter of the statute under the pretext of pursuing its spirit, and may not add words to the statute.
Staley v. Staley
, 2004 ND 195,
688 N.W.2d 182
Rehabilitative spousal support is appropriate when it is possible to restore an economically disadvantaged spouse to independent economic status, or to equalize the burden of divorce by increasing the disadvantaged spouse's earning capacity.
Riemers v. Grand Forks Herald
, 2004 ND 192,
688 N.W.2d 167
Privilege is based upon the sound public policy that some communications are so socially important that the full and unrestricted exchange of information requires some latitude for mistake. A privileged communication does not enjoy absolute
immunity, however.
To prevent abuse, the privilege is a qualified privilege. A qualified privilege is abused if statements are made with actual malice, without reasonable grounds for believing them to be true, and on a subject matter irrelevant to the common interest
or duty.
Riemers v. Peters-Riemers
, 2004 ND 153,
684 N.W.2d 619
Collateral estoppel generally bars new litigation, based on a different claim, of issues that were or must have been determined in the prior suit. Collateral estoppel bars relitigation of an issue if: (1) the issue decided in the prior
adjudication is identical to the one presented; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication; and (4) the party against whom the plea is
asserted had a fair opportunity to be heard on the issue.
A court of this state that has made a child custody determination has exclusive, continuing jurisdiction over the determination.
No civil action lies for perjury in another proceeding.
Res judicata means that a valid, existing final judgment from a court of competent jurisdiction is conclusive, with regard to the issues raised, or those that could have been raised, and determined as to the parties and their privies in all other
actions.
A trial court's denial of a motion for a continuance to amend a complaint will not be reversed unless the trial court abused its discretion. A trial court's denial of a motion for a continuance to conduct additional discovery will not be reversed
unless the trial court abused its discretion.
Interest of T.T.
, 2004 ND 138,
681 N.W.2d 779
Issues not raised in juvenile court may not be raised for the first time on appeal.
A deprivation hearing in juvenile court may not be combined with a hearing on divorce-related child custody and visitation issues.
A juvenile court's oral findings may be used to explain the juvenile court's written decision.
Tibbetts v. Dornheim
, 2004 ND 129,
681 N.W.2d 798
Generally, interlocutory orders in an action are merged into the final judgment and may be reviewed on appeal of that judgment.
All of the issues between parties are merged in the final judgment.
A party waives an issue by not providing supporting argument, and without supportive reasoning or citations to relevant authorities, an argument is without merit.
Riemers v. O'Halloran
, 2004 ND 79,
678 N.W.2d 547
A party waives an issue by not providing supporting argument, and without supportive reasoning or citations to relevant authorities, an argument is without merit.
Court-appointed expert witnesses are absolutely immune from suit on the basis of their testimony.
An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which could be seen as evidence of bad faith.
State v. Waltz
, 2003 ND 197,
672 N.W.2d 457
Probable cause to arrest exists when an officer has knowledge that would give a prudent person reasonable grounds to believe an offense has been or is being committed.
After making a lawful custodial arrest of the occupant of an automobile, the police may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile, including any containers found therein.
The tentative elimination of alcohol as the cause of a defendant's impairment may result in a reasonable suspicion that the defendant is under the influence of drugs.
State v. Knowels
, 2003 ND 180,
671 N.W.2d 816
North Dakota law does not require a chemical test to convict a person of driving while under the influence of alcohol. A conviction may be sustained when evidence of defendant's intoxication is shown through witness testimony of defendant's
intoxication, based on their observations of defendant.
State v. Hernandez
, 2002 ND 200,
655 N.W.2d 84
Judgment entered on defendant's guilty plea to gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(4).
Jensen v. State
, 2002 ND 184,
655 N.W.2d 84
Judgment denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6).
State v. Knowels
, 2002 ND 62,
643 N.W.2d 20
Failure to register as a sex offender is not a strict liability offense but, instead, includes the culpable mental state of "willfully."
A crime is completed when all of its essential elements are present and complete.
State v. Ringsrud
, 2002 ND 17,
642 N.W.2d 532
Judgment of conviction for unlawful possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (3).
State v. Jensen
, 2001 ND 159,
639 N.W.2d 706
Criminal conviction for failure to appear after release - bail jumping summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).