Opinions

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State v. Vigen 2019 ND 134
Docket No.: 20180394
Filing Date: 5/16/2019
Case Type: DUI/DUS
Author: Jensen, Jon J.

Highlight: An informed consent advisory omitting statutory language regarding refusal to submit to a urine test does not comply with N.D.C.C. § 39-20-01(3)(a).

Ortega v. Sanford Bismarck, et al. 2019 ND 133
Docket No.: 20180331
Filing Date: 5/16/2019
Case Type: MALPRACTICE
Author: Jensen, Jon J.

Highlight: The purpose of the expert opinion affidavit requirement under N.D.C.C. § 28-01-46 is to screen totally unsupported claims and to prevent protracted litigation when a medical malpractice plaintiff cannot substantiate a basis for the claim.
District courts should be cautious when granting summary judgment on propositions of law that were not advanced by the parties.
This Court on appeal does not provide advisory opinions.

Sutton v. N.D. Dept. of Transportation 2019 ND 132
Docket No.: 20180427
Filing Date: 5/16/2019
Case Type: TRANSPORTATION DEPT.
Author: Tufte, Jerod E.

Highlight: Checking the boxes denoting an odor of alcohol and refusal of chemical testing, in combination with a note in the explanation box stating the driver declined field sobriety tests, is sufficient to render the Report and Notice Form adequate under N.D.C.C. § 39-20-04.

Bride v. Trinity Hospital, et al. 2019 ND 131
Docket No.: 20180335
Filing Date: 5/16/2019
Case Type: PERSONAL INJURY
Author: Crothers, Daniel John

Highlight: A dismissal without prejudice is appealable if the statute of limitations has expired on the plaintiff’s claim, foreclosing further litigation in this state.
A plaintiff in a medical malpractice action must serve an affidavit containing an admissible expert opinion supporting a prima facie case of professional negligence within three months of the commencement of the action or request an extension of the time to serve the affidavit within the three-month period.
Claims of inadequate follow-up or post-operative care ordinarily require expert testimony regarding the appropriate standard of care.

Nodak Mutual Insurance Company v. Steffes, et al. 2019 ND 130
Docket No.: 20180359
Filing Date: 5/16/2019
Case Type: INSURANCE
Author: Crothers, Daniel John

Highlight: An order granting a new trial is not reviewable without N.D.Civ.P. 54(b) certification.

A two prong inquiry is used to determine whether an order is appealable if unadjudicated claims remain to be resolved by the trial court. First, the order must satisfy one of the statutorily enumerated bases for appeal. Second, the order must be certified under N.D.R.Civ.P. 54(b).

Heartland State Bank v. Larson, et al. 2019 ND 129
Docket No.: 20180241
Filing Date: 5/16/2019
Case Type: FORECLOSURE
Author: VandeWalle, Gerald W.

Highlight: A creditor must strictly comply with the statutory provisions relating to the foreclosure of a mortgage, including the provisions for notice before foreclosure.
A defective notice before foreclosure is fatal to a creditor’s foreclosure action if the issue is raised during the pendency of the action and impairs a right of the debtor.

Twin City Technical LLC, et al. v. Williams County, et al. 2019 ND 128
Docket No.: 20180264
Filing Date: 5/16/2019
Case Type: OIL, GAS AND MINERALS
Author: Jensen, Jon J.

Highlight: A county’s lease of minerals executed in violation of mandatory competitive bidding statutes renders the lease invalid.
Laches is a delay or lapse of time in commencing an action that works a disadvantage or prejudice to the adverse party because of a change in conditions during the delay.

State v. Hunt 2019 ND 127
Docket No.: 20180423
Filing Date: 5/16/2019
Case Type: ASSAULT
Author: Jensen, Jon J.

Highlight: An application of N.D.C.C. § 12.1-32-08(1) to allow other recipients to recover restitution does not conflict with, and can be harmonized with, N.D. Const. art. I, § 25.

Jensen v. State 2019 ND 126
Docket No.: 20180280
Filing Date: 5/16/2019
Case Type: POST-CONVICTION RELIEF
Author: McEvers, Lisa K. Fair

Highlight: A Rule 11(d) motion to withdraw a guilty plea, filed after entry of the criminal judgment and a stipulated dismissal of the direct appeal, is not a critical stage of the proceeding affording the movant the constitutional guarantee to counsel nor a stage of the proceeding requiring counsel under N.D.R.Crim.P. 44(a).

A Rule 35(b) motion for reduction of sentence is neither a critical stage of the proceeding affording the movant the constitutional guarantee to counsel nor a stage of the proceeding requiring counsel under N.D.R.Crim.P. 44(a).

Matter of J.M. 2019 ND 125
Docket No.: 20180278
Filing Date: 5/16/2019
Case Type: CIVIL COMMIT OF SEXUAL PREDATOR
Author: VandeWalle, Gerald W.

Highlight: The State did not establish clear and convincing evidence of a nexus between J.M.’s disorder and his sexual dangerousness to others.

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