Opinions

State v. Dowdy 2019 ND 50
Docket No.: 20180204
Filing Date: 2/21/2019
Case Type: Appeal - Criminal - DUI/DUS/APC
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: Appeal - Civil - Divorce - Property
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: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Gonzalez v. State 2019 ND 47
Docket No.: 20180188
Filing Date: 2/21/2019
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: When an applicant for post-conviction relief alleges newly discovered evidence, a district court errs in sua sponte summarily denying the application, after the State has responded to the application, without providing the applicant notice and the opportunity to submit an answer with supporting materials to show the existence of a genuine issue of material fact.

A district court’s error in sua sponte summarily denying an application for post-conviction relief alleging newly discovered evidence after response by the State does not prejudice the applicant if the district court later considers and correctly rules on the merits in the applicant’s subsequent motion for reconsideration.

Kuntz v. State 2019 ND 46
Docket No.: 20180135
Filing Date: 2/21/2019
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A district court’s decision granting judgment on the pleadings under N.D.R.Civ.P. 12(c) is reviewed de novo.

A public entity violates the open records law when a person’s right to review or receive a copy of a record that is not exempt or confidential is denied or unreasonably delayed or when an excessive fee is charged.

A civil action for a violation of the open records law may be filed after an unreasonably delayed disclosure if a person alleges prejudice or harm caused by the delay.

An affidavit of service by mail filed with the court establishes service of the referenced documents. Service of an unsigned copy of the affidavit does not vitiate the evidence of service presented to the court by filing the signed affidavit.

Heidt v. Heidt 2019 ND 45
Docket No.: 20180250
Filing Date: 2/21/2019
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Highlight: District court erred in finding mother had not made a prima facie case for modification of primary residential responsibility.

State v. Abuhamda 2019 ND 44
Docket No.: 20180127
Filing Date: 2/21/2019
Case Type: Appeal - Criminal - Drugs/Contraband
Author: McEvers, Lisa K. Fair

Highlight: The right to appeal in this state is purely statutory, and without statutory authorization to hear an appeal this Court lacks jurisdiction.

An order approving pretrial diversion is not appealable under statutory authority contained in N.D.C.C. 29-28-06.

Supervisory writs may be issued in extraordinary cases to prevent injustice when no adequate alternative remedies exist.

While it is true N.D.R.Crim.P. 11(a)(2) does not require ritualistic compliance to enter a conditional guilty plea, courts must substantially comply with the rule’s procedural requirements to ensure defendants enter the plea voluntarily and intelligently.

State v. Vetter 2019 ND 43
Docket No.: 20180142
Filing Date: 2/21/2019
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Tufte, Jerod E.

Highlight: The statutory implied consent advisory must be read after a person is placed under arrest and before a chemical test may be administered to determine alcohol concentration.

The totality of the circumstances must be considered to determine whether a person voluntarily consented to submit to a blood test to determine blood-alcohol concentration.

An accurate reading of the implied consent advisory does not constitute per se coercion.

Estate of Krueger 2019 ND 42
Docket No.: 20180237
Filing Date: 2/21/2019
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: For purposes of Medicaid recovery from a surviving spouse’s estate, the Department’s recovery from a deceased recipient’s joint tenancy property is limited to the deceased recipient’s fractional interest in the property.

Schindler, et al. v. Wageman, et al. 2019 ND 41
Docket No.: 20180024
Filing Date: 2/21/2019
Case Type: Appeal - Civil - Real Property
Author: Jensen, Jon J.

Highlight: Party was required to provide clear and convincing evidence that warranty deeds did not correctly state the parties’ intent.

Consent to try an issue outside the pleadings cannot be implied from evidence which is relevant to the pleadings but which also bears on an unpled issue.