Opinions

Caster v. State 2019 ND 187
Docket No.: 20190043
Filing Date: 7/11/2019
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: District court order summarily denying application for post-conviction relief remanded with instructions for further proceedings.

Reliance on proposed orders containing no factual findings, conclusions of law, or support from the record does not satisfy the requirements of N.D.C.C. § 29-32.1-11.

Wilkens v. Westby 2019 ND 186
Docket No.: 20180430
Filing Date: 7/11/2019
Case Type: Appeal - Civil - Personal Injury
Author: McEvers, Lisa K. Fair

Highlight: Death does not make a resident absent from the state for six months or more post-accident for purposes of service under North Dakota’s nonresident motorist statute, N.D.C.C. § 39-01-11.

Klein v. Estate of Luithle 2019 ND 185
Docket No.: 20180433
Filing Date: 7/11/2019
Case Type: Appeal - Civil - Personal Injury
Author: Tufte, Jerod E.

Highlight: Although a district court judge has broad discretion when admitting or excluding expert witness testimony, it is an abuse of discretion to strike all of an expert witness’s testimony sua sponte when some of the testimony is admissible.

Twete v. Mullin, et al. 2019 ND 184
Docket No.: 20170450
Filing Date: 7/11/2019
Case Type: Appeal - Civil - Real Property
Author: McEvers, Lisa K. Fair

Highlight: A district court’s denial of a motion for new trial is reviewed for an abuse of discretion.

A court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner; its decision is not the product of a rational mental process leading to a reasoned determination; or it misinterprets or misapplies the law.

Unopposed jury instructions become the law of the case. A party on appeal cannot complain about error that is of their own making.

A district court considering a new trial motion based on insufficiency of the evidence may not substitute its own judgment for that of the jury, or act as a thirteenth juror when the evidence is such that different persons would naturally and fairly come to different conclusions, but may set aside a jury verdict when, in considering and weighing all the evidence, the court’s judgment tells it the verdict is wrong because it is manifestly against the weight of the evidence.

Absent statutory or contractual authority, the American Rule assumes parties to a lawsuit bear their own attorney fees.

State v. Hendrickson 2019 ND 183
Docket No.: 20190075
Filing Date: 7/11/2019
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: Information obtained from a 911 caller may provide a sufficient factual basis to raise a reasonable and articulable suspicion of potential criminal activity to justify an investigatory stop.

State v. West 2019 ND 182
Docket No.: 20180358
Filing Date: 7/11/2019
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: The crime of conspiracy to “knowingly” commit murder is not a cognizable crime. Charging a defendant with such a crime is obvious error.

State v. Swanson 2019 ND 181
Docket No.: 20180373
Filing Date: 7/11/2019
Case Type: Appeal - Criminal - Misc. Felony
Author: Jensen, Jon J.

Highlight: Conspiracy to commit a “knowing” murder is a non-cognizable offense.

Because the defendant may have been convicted of a non-cognizable offense, the matter was remanded for a new trial.

Minyard v. Lindseth 2019 ND 180
Docket No.: 20180311
Filing Date: 7/5/2019
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Highlight: For child support purposes, an obligor’s income must be sufficiently documented through the use of tax returns, current wage statements, and other information.

Self-employment income must be determined using the average of the most recent five years of self-employment activity if that information is available.

State v. Welch 2019 ND 179
Docket No.: 20180444
Filing Date: 7/3/2019
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Highlight: A district court does not abuse its discretion when in a criminal judgment it describes an inchoate crime by reference to both Chapter 12.1-06 and the statute specifying the underlying criminal offense.

Burden v. State 2019 ND 178
Docket No.: 20180353
Filing Date: 7/3/2019
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: A motion for summary disposition on the pleadings in a post-conviction proceeding is analogous to a N.D.R.Civ.P. 12(b)(6) motion and looks at the application in the light most favorable to the applicant and accepts well-pleaded allegations as true.

General allegations in a State’s answer to a post-conviction application are insufficient to put the applicant to his proof on an ineffective assistance of counsel claim.