Opinions

State v. Rende 2018 ND 56
Docket No.: 20170144
Filing Date: 2/22/2018
Case Type: Appeal - Criminal - Assault
Author: VandeWalle, Gerald

Highlight: A district court's use of jury instructions that fail to include every element of the offense is error. However, that error is waived if defendant invited the error by submitting proposed instructions that also failed to include every element of the offense and if the defendant failed to object to the instructions at trial.
It is a cardinal rule of appellate review that a party may not challenge as error a ruling or other trial proceeding invited by that party. A party may not take advantage of irregularities in the proceedings unless he objects at the time they occur, allowing the district court to take appropriate action.

Snider, et al. v. Dickinson Elks Building, LLC 2018 ND 55
Docket No.: 20170284
Filing Date: 2/22/2018
Case Type: Appeal - Civil - Real Property
Author: Tufte, Jerod E.

Highlight: Under N.D.C.C. § 43-07-02, a contractor is precluded from bringing any claims, suits, or actions related to the contractor's business or capacity as a contractor for periods when the contractor was not licensed.

Comes v. State 2018 ND 54
Docket No.: 20170346
Filing Date: 2/22/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: Affirmative defenses, including statutes of limitations, are waived if not pleaded.
An issue is not ripe for review if it depends on future contingencies which, although they might occur, necessarily may not, thus making addressing the question premature.

Tuhy v. Tuhy 2018 ND 53
Docket No.: 20170214
Filing Date: 2/22/2018
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: In a divorce, property division need not be equal to be equitable, but a substantial disparity must be explained.
An award of spousal support is a finding of fact which will not be set aside on appeal unless clearly erroneous.
When an award of attorney's fees is not raised in a motion for a new trial, it cannot be raised on appeal.

State v. Fleckenstein 2018 ND 52
Docket No.: 20170276
Filing Date: 2/22/2018
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Tufte, Jerod E.

Highlight: Law enforcement's reading of the implied consent advisory does not render consent to a blood test per se involuntary. Involuntariness must be examined under the totality of the circumstances.

State v. Rolfson 2018 ND 51
Docket No.: 20170225
Filing Date: 2/22/2018
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: District court decisions regarding discovery violations are reviewed under the abuse of discretion standard.
A defendant is in a weak position to assert prejudice from the prosecution's failure to produce requested documents or other materials under N.D.R.Crim.P. 16 when the defendant had other available means to obtain the requested material.

Blackcloud v. State 2018 ND 50
Docket No.: 20170312
Filing Date: 2/22/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Jensen, Jon J.

Highlight: A district court does not err in denying a petitioner's application for post-conviction relief based on ineffective assistance of counsel when counsel's performance did not fall below an objective standard of reasonableness.
A district court does not abuse its discretion when it excludes evidence, which trial counsel was not previously aware of, in an evidentiary hearing on post-conviction relief based on ineffective assistance of counsel.

City of Bismarck v. Weisz 2018 ND 49
Docket No.: 20170191
Filing Date: 2/22/2018
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Tufte, Jerod E.

Highlight: Law enforcement officers do not need to physically see a suspect in a vehicle for that individual to be arrested for being in actual physical control of a vehicle while intoxicated.
Circumstantial evidence of actual physical control is sufficient.

Rebenitsch v. Rebenitsch 2018 ND 48
Docket No.: 20170302
Filing Date: 2/22/2018
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Highlight: When determining the best interests of a child, a district court may properly consider past behavior to determine whether a person may significantly affect a child's best interests in the future.
A district court does not clearly err by considering a child's anxiety and behavioral changes caused by a parent moving when deciding primary residential responsibility.

Winnie Development, LLLP, v. Reveling, et al. 2018 ND 47
Docket No.: 20170149
Filing Date: 2/22/2018
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: A plat containing a dedication which does not strictly conform to the statute will not transfer fee title to the public.
An imperfectly made statutory dedication may transfer an interest in land by common-law dedication if intent to dedicate and acceptance by the public exist.