Opinions

Interest of D.M.H. (CONFIDENTIAL) 2019 ND 88
Docket No.: 20180313
Filing Date: 3/21/2019
Case Type: Appeal - Civil - Juvenile Law
Author: Per Curiam

Highlight: When awarding a guardianship, the district court must determine whether the parents should be awarded visitation. The district court may not delegate determination of a visitation schedule.

Estate of Brandt 2019 ND 87
Docket No.: 20180160
Filing Date: 3/18/2019
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Jensen, Jon J.

Highlight: A personal representative is not precluded from filing petitions as an interested person in the supervised administration of an estate while simultaneously performing fiduciary duties to distribute property according to a will and the best interests of an estate.

A probate court has jurisdiction to determine title to property alleged to belong to an estate and the value of that property.

Petitions and accompanying documents filed with the probate court are deemed to include an oath or affirmation of truthfulness.

An appellate court reviews a final report and accounting allocating estate assets under an abuse-of-discretion standard.

State v. Hamre 2019 ND 86
Docket No.: 20180055
Filing Date: 3/18/2019
Case Type: Appeal - Criminal - Assault
Author: Tufte, Jerod E.

Highlight: In considering a speedy trial claim, a district court must balance the length of the delay, the reason for the delay, the accused’s assertion of the right to a speedy trial, and the prejudice to the accused.

State v. Guthmiller 2019 ND 85
Docket No.: 20180225
Filing Date: 3/18/2019
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: A district court order denying a defendant’s motion to withdraw a guilty plea is affirmed if the defendant fails to show a “fair and just” reason for withdrawal.

Issues not adequately raised at the trial level will not be addressed for the first time on appeal.

State v. Morsette 2019 ND 84
Docket No.: 20180076
Filing Date: 3/15/2019
Case Type: Appeal - Criminal - Drugs/Contraband
Author: McEvers, Lisa K. Fair

Highlight: A district court’s finding that the facts support a reasonable and articulable suspicion is fully reviewable on appeal.

Merely observing a driver tapping the illuminated screen of his cell phone for two seconds does not create reasonable and articulable suspicion that a violation of N.D.C.C. 39-08-23 has occurred.

It is not reasonable to conclude an officer made a reasonable mistake of fact if he is unable to articulate why he thought an individual’s conduct violated the law.

Lies v. N.D. Dep't of Transportation 2019 ND 83
Docket No.: 20180393
Filing Date: 3/15/2019
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: Burden is on moving party to prove vehicle properly identified by evidence.
Reasonable suspicion not present where officers could not reasonably identify vehicle after tip.

Baker v. Autos, Inc., et al. 2019 ND 82
Docket No.: 20180238
Filing Date: 3/15/2019
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: A retail installment contract must disclose charges and fees that are finance charges as finance charges to comply with the disclosure requirements of the Retail Installment Sales Act.

Lincoln Land Development, LLP v. City of Lincoln 2019 ND 81
Docket No.: 20180117
Filing Date: 3/15/2019
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: The extent of a prescriptive easement is fixed by the use through which it was created, and use beyond the easement’s originally created use may be a governmental taking.

A trial court may award reasonable attorney fees, expert witness fees, or litigation costs to the prevailing party in an eminent domain action.

A landowner’s reasonable attorney fees may include the cost of adjudicating an appeal.

Ebach v. N.D. Dep't of Transportation 2019 ND 80
Docket No.: 20180290
Filing Date: 3/13/2019
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: At a hearing under N.D.C.C. 39-20-05, the regularly kept records of the director and state crime laboratory may be introduced; once introduced, those records establish prima facie their contents without further foundation.

Once a chemical breath test record is admitted into evidence, establishing prima facie its contents, a party may rebut the presumption of fair administration by establishing a deviation from approved procedures or a lack of fair administration despite compliance with approved procedures.

Unless the defendant produces enough evidence to rebut the foundation of fair administration, evidence discrediting chemical breath test results will affect the weight given the test results not their admissibility.

Steps not expressly included in the approved method published by the State Toxicologist are not foundational requirements for the admission of chemical breath test records.

City of Fargo v. Nikle 2019 ND 79
Docket No.: 20180292
Filing Date: 3/13/2019
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: An affirmative defense jury instruction will only be given if there is evidence to support it.

A district court does not abuse its discretion by denying a requested jury instruction on the affirmative defense of necessity when the proponent of the instruction fails to present evidence on one of the elements of the necessity defense.

The necessity defense has not yet been recognized or precluded in a criminal case by this Court.