Opinions

Estate of Moore 2018 ND 221
Docket No.: 20170332
Filing Date: 10/3/2018
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: A contract’s language governs its interpretation if the language is clear and explicit and does not involve an absurdity.
The general partnership laws, N.D.C.C. chapters 45-13 through 45-21, govern a partnership to the extent a partnership agreement does not otherwise provide.

Tamba v. State 2018 ND 220
Docket No.: 20180046
Filing Date: 10/3/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying post-conviction relief summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Borsheim Builders Supply, Inc. v. Manger Insurance, Inc., et al. 2018 ND 218
Docket No.: 20180082
Filing Date: 9/25/2018
Case Type: Appeal - Civil - Insurance
Author: McEvers, Lisa K. Fair

Highlight: Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law.

The burden of proof rests on a party claiming coverage under an insurance policy, but the insurer has the burden of establishing the applicability of exclusions.

State v. Wangstad 2018 ND 217
Docket No.: 20170452
Filing Date: 9/25/2018
Case Type: Appeal - Criminal - Misc. Felony
Author: Jensen, Jon J.

Highlight: It is not obvious error for a district court to admit into evidence statements concerning a defendant’s prior bad acts at the defendant’s request.

When a defendant does not object to jury instructions at trial, this Court’s review is limited to whether the jury instructions constitute plain error.

When considering a challenge to sufficiency of the evidence, this Court draws all reasonable inferences in favor of the verdict.

State v. Bohe 2018 ND 216
Docket No.: 20170456
Filing Date: 9/25/2018
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Tufte, Jerod E.

Highlight: If a law enforcement officer fails to provide a driver the complete statutory implied consent advisory after the defendant’s arrest and before the driver’s submission to the chemical test, the result is inadmissible in any criminal or administrative proceeding.

The United States Supreme Court decision in Birchfield v. North Dakota did not abrogate the statutory advisory or admissibility standard.

State v. Seidel 2018 ND 215
Docket No.: 20180035
Filing Date: 9/25/2018
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: A district court may impose both a maximum probation sentence and a maximum imprisonment sentence for misdemeanors.

Constitutional issues will not be considered for the first time on appeal.

Riskey v. Riskey (consolidated w/20170393) 2018 ND 214
Docket No.: 20170392
Filing Date: 9/20/2018
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: A trust is void or subject to reformation by the court to the extent its creation was induced by fraud, duress, or undue influence.
The “law of the case” doctrine and the scope of the parties’ appeal define the parameters of review on appeal.
Claims of undue influence can be properly disposed of by summary judgment when the parties claiming undue influence have failed to support their opposition to the summary judgment motion with sufficient facts showing that there is a genuine issue for trial.

WSI v. Beaulieu, et al. 2018 ND 213
Docket No.: 20180037
Filing Date: 9/13/2018
Case Type: Appeal - Administrative - Workers Compensation
Author: Crothers, Daniel John

Highlight: WSI may not issue a permanent impairment award unless identified and quantified within the sixth edition of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment.”
For purposes of a permanent impairment award, a doctor evaluating permanent impairment must include a clinical report in sufficient detail to support the percentage ratings assigned.

Nelson, et al. v. Nelson 2018 ND 212
Docket No.: 20170356
Filing Date: 9/13/2018
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: The determination of mental capacity and whether undue influence exists are ordinarily questions of fact.

A district court’s decision regarding discovery matters will not be reversed on appeal absent an abuse of discretion.

Whether a cotenant has ousted another cotenant from property is a question of fact.

A tenant in common who has ousted his cotenant is liable to the cotenant for rent or for use of the property.
In exercising its discretion in a partition action, the district court has great flexibility in fashioning appropriate relief for the parties.

A district court has broad discretion over evidentiary matters.

Davies v. State 2018 ND 211
Docket No.: 20180059
Filing Date: 9/13/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: Summary disposition is generally inappropriate for post-conviction claims of ineffective assistance of counsel because the underlying record and transcripts do not fully develop the record.

In opposing a State’s motion for summary disposition, an applicant for post-conviction relief may not merely rely on the pleadings or on unsupported conclusory allegations but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact. A verified application for post-conviction relief may be treated as an affidavit to provide evidence to resist a motion for summary disposition.

If the petitioner raises an issue of material fact in resisting summary dismissal of an application for post-conviction relief, the petitioner is entitled to an evidentiary hearing.

When a criminal defendant is charged with continuous sexual abuse of a child, the charging document need not include specific dates of the sexual abuse.