Opinions

Motter, et al. v. Traill Rural Water District 2017 ND 267
Docket No.: 20170122
Filing Date: 11/20/2017
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: Raising the decisive issue for a judgment in post-trial briefing can constitute "surprise which ordinary prudence could not have guarded against" sufficient to grant a new trial.
A district court's grant of a motion for a new trial is reviewed for abuse of discretion.
A party claiming mutual mistake in a contract must present clear and convincing evidence to obtain reformation.
A district court's finding that a party failed to prove mutual mistake by clear and convincing evidence will not be overturned unless clearly erroneous.

Forsman v. Blues Brews and Bar-B-Ques Inc., et al. (cross-ref. w/20110356) 2017 ND 266
Docket No.: 20170088
Filing Date: 11/16/2017
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: Under a Miller-Shugart agreement and judgment, an insured defendant may stipulate for settlement of a plaintiff's claims and stipulate judgment may be collected only from the proceeds of any insurance policy, with no personal liability to the defendant. The stipulated judgment is not conclusive on the insurer.
While the burden of proof rests on a party claiming coverage under an insurance policy, the insurer has the burden of establishing the applicability of exclusions.
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.

State v. Myers (cross-reference w/20130172) 2017 ND 265
Docket No.: 20170094
Filing Date: 11/16/2017
Case Type: Appeal - Criminal - Assault
Author: McEvers, Lisa K. Fair

Highlight: Under N.D.R.Crim.P. 35(a)(2), a sentencing court may correct a sentence that resulted from arithmetical, technical, or other clear error.
A subsequent statutory amendment removing class C felony aggravated assault from the provision requiring an offender to serve eighty-five percent of a sentence of incarceration is not an error that may be corrected under N.D.R.Crim.P. 35(a)(2).

Martinson v. N.D. Dep't of Transportation 2017 ND 264
Docket No.: 20170175
Filing Date: 11/16/2017
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: Absent a showing of authority, threat, or demand, an officer calling out and running up ahead of person to get their attention does not constitute a seizure implicating the Fourth Amendment.
Under N.D.C.C. § 39-08-01, whether a driveway is a private area to which the public has a right to access is a question of fact. A fact-finder could reasonably conclude the driveway at issue, although private, was an area "to which the public has a right of access for vehicular use."

Garcia v. State 2017 ND 263
Docket No.: 20170030
Filing Date: 11/16/2017
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: A sentencing court must consider a juvenile offender's youth and attendant characteristics before sentencing the juvenile offender to life in prison without the possibility of parole.

Haugrud v. Craig 2017 ND 262
Docket No.: 20170157
Filing Date: 11/16/2017
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: Corporate shareholders and limited liability company members generally have no right to bring actions in their individual names and on their own behalf for a wrong committed against the entity.
To have standing to sue individually, a shareholder or member must allege an injury separate and distinct from other shareholders or members, or a wrong involving a contractual right of the individual that exists independently of any right of the entity.
Ordinarily a claim against the plaintiff in a representative capacity cannot be set off in a suit brought in his or her individual capacity, and vice versa.
A complaint should not be dismissed for failure to state a claim if the court can discern a potential for proof to support it.

American Express Centurion Bank v. Corum (consolidated w/20170134) 2017 ND 261
Docket No.: 20170133
Filing Date: 11/16/2017
Case Type: Appeal - Civil - Debtor/Creditor
Author: McEvers, Lisa K. Fair

Highlight: A party who is not represented by a licensed attorney cannot be represented by another person, including their spouse, in any court of record in this state, absent authorization provided by state law or supreme court rule.
The right of free speech does not encompass in-court advocacy by a non-lawyer on behalf of another person, including a spouse.

State v. Sheperd 2017 ND 260
Docket No.: 20170186
Filing Date: 11/16/2017
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: Section 12.1-41-06(1)(a), N.D.C.C., does not require the presence of a minor to obtain a conviction.
Under the plain language of N.D.C.C. § 12.1-41-06(1)(a), an individual may be convicted of an offense if the agreement is made with someone other than a minor.

Candee, et al. v. Candee 2017 ND 259
Docket No.: 20170028
Filing Date: 11/16/2017
Case Type: Appeal - Civil - Foreclosure
Author: Tufte, Jerod E.

Highlight: Parties to an agreement may stipulate as to choice of law.
Applying California law, a creditor is barred from obtaining a deficiency judgment following foreclosure unless the creditor brings an action for a deficiency judgment within three months of the foreclosure sale.

State v. Toure (consolidated w/20170039 & 20170040) 2017 ND 258
Docket No.: 20170038
Filing Date: 11/16/2017
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Analysis of a speedy trial claim requires balancing the length of delay, reason for the delay, proper assertion of the right, and actual prejudice to the accused.
A district court's judgments entered after a jury found the defendant guilty of reckless endangerment, kidnapping, aggravated assault, and two counts of terrorizing are summarily affirmed under N.D.R.App.P. 35.1(a)(2), (3), and (7).