Opinions

State v. Cody 2017 ND 147
Docket No.: 20160357
Filing Date: 6/15/2017
Case Type: Appeal - Criminal - Theft
Author: McEvers, Lisa K. Fair

Highlight: When an ineffective assistance of counsel claim is raised on direct appeal from a criminal conviction, the defendant must show ineffectiveness of constitutional dimensions from the face of the existing record to obtain relief.

Cartwright, et al. v. Tong, M.D., et al. 2017 ND 146
Docket No.: 20160293
Filing Date: 6/14/2017
Case Type: Appeal - Civil - Malpractice
Author: Crothers, Daniel John

Highlight: A prima facie case of medical negligence requires expert evidence establishing the applicable standard of care, violation of that standard, and a causal relationship between the violation and the harm complained of.
Under the "obvious occurrence" exception, the occurrence leading to the result must be obvious, not the result itself.
In a lack of informed consent case, expert medical testimony is generally necessary to identify the risks of treatment, their gravity, likelihood of occurrence, and reasonable alternatives.
Under N.D.C.C. § 28-01-46, the plain, ordinary and commonly understood meaning of the phrase "wrong organ" requires a doctor to perform a procedure on the incorrect organ. The "wrong organ" exception does not apply to performing an allegedly incorrect procedure on the correct organ.

Huebner, et al. v. Furlinger, et al. (cross-reference w/20150169) 2017 ND 145
Docket No.: 20160269
Filing Date: 6/8/2017
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: Under the abandoned mineral statutes, the surface owner must mail a copy of the notice of lapse to the mineral interest owner's address if the mineral interest owner's address is shown of record.

Interest of R.W.B.C. 2017 ND 144
Docket No.: 20160300
Filing Date: 6/7/2017
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Highlight: The clearly erroneous standard of review does not permit a reweighing of evidence or reassessment of credibility.

State v. Bailey 2017 ND 143
Docket No.: 20160351
Filing Date: 6/7/2017
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: In determining "corroborating circumstances" under N.D.R.Ev. 804(b)(3), the district court may analyze both the credibility of the in-court witness and the reliability of the out-of-court declarant.
A district court's analysis of whether "corroborating circumstances" indicate the trustworthiness of the statement is a preliminary determination regarding the admissibility of the evidence.

State v. Wilkie 2017 ND 142
Docket No.: 20160401
Filing Date: 6/7/2017
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: Police officers outside of their jurisdiction generally act without official capacity and authority to arrest.
A University of North Dakota police officer has the authority to initiate a traffic stop of a driver operating a motor vehicle on university property.

State v. Phelps 2017 ND 141
Docket No.: 20160196
Filing Date: 6/7/2017
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: To justify stopping a moving vehicle for investigation, a law enforcement officer must have a reasonable and articulable suspicion a motorist has violated or is violating the law.
During an investigatory stop of a vehicle, a traffic violator can be temporarily detained until the legitimate investigative purposes of the traffic stop have been completed.

SNAPS Holding Company v. Leach, et al. 2017 ND 140
Docket No.: 20160313
Filing Date: 6/7/2017
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: An indemnification agreement need not be in writing, and an agent's authority to enter into an indemnification agreement need not be in writing.
Res judicata prevents the relitigation of claims that were raised, or could have been raised, in prior actions between the same parties. Res judicata does not apply if the subsequent claims are based on different underlying facts.

State v. Turbeville 2017 ND 139
Docket No.: 20160333
Filing Date: 6/7/2017
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: At a preliminary hearing in a criminal case, the State is not required to prove with absolute certainty or beyond a reasonable doubt that a crime occurred, but need only produce sufficient evidence to establish probable cause that a crime occurred and that the defendant committed it.
Whether the district court's findings of fact reach the level of probable cause is a question of law, fully reviewable on appeal.
The preliminary hearing is a tool to ferret out groundless and improvident prosecutions.

Rath v. Rath (cross ref w/ 20130025, 20130184, 20130327, 20140012, 20140291, 2017 ND 138
Docket No.: 20160338
Filing Date: 6/7/2017
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A party is not entitled to demand a change of judge if the judge sought to be disqualified has ruled upon a matter pertaining to the action.
A request to amend the child support guidelines should be made to the Legislature or Department of Human Services.