Opinions

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Robert Banderet,et al. vs. Sargent Count Water Resource District, et al. 2019 ND 57
Docket No.: 20180253
Filing Date: 2/26/2019
Case Type: REAL PROPERTY
Author: VandeWalle, Gerald W.

Highlight: In general, when an appeal from a local governing body’s decision is authorized by law, equitable relief against the enforcement of the decision will not be allowed.
An appeal of a local governing body’s decision must be taken within 30 days of the decision.

Bindas v. Bindas 2019 ND 56
Docket No.: 20180232
Filing Date: 2/25/2019
Case Type: DIVORCE/PROPERTY DIV./ALIMONY
Author: Tufte, Jerod E.

Highlight: Section 14-05-24.1(3), N.D.C.C., which authorizes the district court to terminate spousal support when the spouse receiving support has been habitually cohabiting with another individual in a relationship analogous to a marriage for more than one year, does not apply when the parties have a contrary written agreement.

Matter of Kulink 2019 ND 55
Docket No.: 20180083
Filing Date: 2/25/2019
Case Type: CIVIL COMMIT OF SEXUAL PREDATOR
Author: Per Curiam

Highlight: A district court order denying discharge from civil commitment as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2)

Dick v. Erman 2019 ND 54
Docket No.: 20180236
Filing Date: 2/21/2019
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: Jensen, Jon J.

Highlight: A district court’s award of primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous.

Absent a reason for denying it, some form of extended visitation with a fit non-custodial parent is routinely awarded.

A district court’s ruling on decision-making responsibility is a finding of fact, reviewed under the clearly erroneous standard.

Lenertz v. City of Minot N.D. 2019 ND 53
Docket No.: 20180153
Filing Date: 2/21/2019
Case Type: REAL PROPERTY
Author: Crothers, Daniel John

Highlight: To establish an inverse condemnation claim, a property owner must prove a public entity took or damaged the owner’s property for a public use and the public use was the proximate cause of the taking or damages.

Whether private property was taken for public use is a question of law, fully reviewable on appeal.

The district court has broad discretion determining whether to allow expert witness testimony, and its decision will not be reversed on appeal unless it abused its discretion.

The district court’s decision to grant a motion for judgment as a matter of law is based on whether the evidence, viewed in the light most favorable to the party against whom the motion is made, leads to but one conclusion as to the verdict about which there can be no reasonable difference of opinion. Whether the evidence is sufficient to create a question of fact for the jury is a question of law.

State v. Hansford 2019 ND 52
Docket No.: 20180179
Filing Date: 2/21/2019
Case Type: SEXUAL OFFENSE
Author: McEvers, Lisa K. Fair

Highlight: Whether a suspect is in custody is a mixed question of fact and law which is fully reviewable on appeal.

A reasonable person would not believe he was in custody when he traveled unrestrained to the police station, was not placed under arrest or otherwise restrained, was told he was free to leave at any time, sat closest to the door during the interview, was interviewed in a room with only one law enforcement agent present, did not show any apprehension about being in the agent’s company, and told the agent he understood he was free to leave at any time.

It is the State’s burden to prove the voluntariness of a defendant’s confession and to produce evidence on relevant factors.

Even if a suspect is not in custody and Miranda warnings are given gratuitously, they are not rendered wholly irrelevant in determining whether incriminating statements were given voluntarily.

Parties raising a constitutional claim must provide persuasive authority and a reasoned analysis to support the claim.

State v. Powley 2019 ND 51
Docket No.: 20180226
Filing Date: 2/21/2019
Case Type: SEXUAL OFFENSE
Author: McEvers, Lisa K. Fair

Highlight: A pre-trial order in limine excluding evidence is a preliminary order that does not dispense with the need for the proponent to make an offer of proof at trial so the district court can consider the proffered evidence in the context of other evidence presented during trial.

An appeal by the State of an order in limine excluding evidence is not statutorily authorized.

The authority to issue a supervisory writ is discretionary and we decide whether to exercise our supervisory jurisdiction on a case-by-case basis.

An appeal by the State of an order denying a motion to amend an information is not statutorily authorized.

State v. Dowdy 2019 ND 50
Docket No.: 20180204
Filing Date: 2/21/2019
Case Type: DUI/DUS
Author: Crothers, Daniel John

Highlight: An arresting officer’s inclusion of additional information in the implied consent advisory must not materially mislead or coerce a defendant.
Whether a defendant voluntarily consents to chemical testing must be determined by the totality of the circumstances.

Varty v. Varty 2019 ND 49
Docket No.: 20180279
Filing Date: 2/21/2019
Case Type: DIVORCE/PROPERTY DIV./ALIMONY
Author: Crothers, Daniel John

Highlight: Agreements between divorcing parties are encouraged, and stipulated spousal support awards should be changed only with great reluctance.
The party seeking modification of spousal support must prove a material change in the financial circumstances of the parties warranting a change in support.
The district court must consider the relevant factors under the Ruff-Fischer guidelines in determining an award of spousal support.

Smith v. Erickson 2019 ND 48
Docket No.: 20180124
Filing Date: 2/21/2019
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: Crothers, Daniel John

Highlight: The district court has broad discretion in making contempt decisions and will not be overturned unless an abuse of discretion occurs.

The lack of a trial transcript does not allow for meaningful and intelligent review of issues on appeal.

The district court did not abuse its discretion in finding plaintiff a vexatious litigant when evidence supported finding litigant persistently and without reasonable grounds filed motions and requests not warranted under existing law.

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