Opinions

State v. Horning (cross-reference w/20150148) 2016 ND 151
Docket No.: 20160086
Filing Date: 7/20/2016
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Once the presumption is established that property is forfeitable drug money, the person claiming the property must rebut the presumption.

City of Napoleon v. Kuhn (cross-ref. w/20140134) 2016 ND 150
Docket No.: 20150327
Filing Date: 7/20/2016
Case Type: Appeal - Criminal - Violation of City Ordinance
Author: McEvers, Lisa K. Fair

Highlight: District courts have a wide discretion when setting restitution but must consider: (1) the reasonable damages sustained; (2) the ability of the defendant to pay monetary reparations; and (3) the likelihood that restitution will serve a valid rehabilitation purpose.
The State must prove the amount of restitution by a preponderance of the evidence.

Ratliff v. State 2016 ND 149
Docket No.: 20150330
Filing Date: 7/20/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: To prevail on a postconviction claim of ineffective assistance of counsel, the petitioner has the heavy burden of proving (1) counsel's representation fell below an objective standard of reasonableness, and (2) the petitioner was prejudiced by counsel's deficient performance.

Garaas v. Cass County Joint Water Resource District 2016 ND 148
Docket No.: 20150350
Filing Date: 7/20/2016
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: As a prerequisite to issuing a valid order or judgment, a court must have both subject matter and personal jurisdiction.
A valid appeal of the decision of a local governing board requires that a copy of the appeal be served on a member of the board.

White Bird v. State 2016 ND 147
Docket No.: 20160025
Filing Date: 7/20/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: Counsel's conduct is presumed to be reasonable, and courts consciously attempt to limit the distorting effect of hindsight.

Hieb v. State 2016 ND 146
Docket No.: 20160019
Filing Date: 7/20/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: An application for post-conviction relief must be filed within two years of the date the conviction becomes final, unless an exception applies.
When a post-conviction relief applicant claims an exception to the statute of limitations because a new interpretation of federal or state law retroactively applies to his case, the application must be filed within two years of the effective date of the retroactive application of law.

State v. Davis 2016 ND 145
Docket No.: 20150287
Filing Date: 7/20/2016
Case Type: Appeal - Criminal - Homicide
Author: McEvers, Lisa K. Fair

Highlight: A district court may consider the circumstances and all relevant factors in determining whether to modify an order for conditional release.
In determining whether to modify an order for conditional release, a district court is required to make findings on the individual's mental status and level of risk to society, which are governed by the clearly erroneous standard of review.
While a district court cannot arbitrarily disregard expert testimony, it can assign the weight to give it, and does not have to accept experts' opinions as conclusive.

Interest of E.P. (CONFIDENTIAL)(consolidated w/20160185 & 20160186) 2016 ND 143
Docket No.: 20160184
Filing Date: 7/20/2016
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: A juvenile court order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Bjorneby, et al. v. Nodak Mutual Insurance Company, et al. 2016 ND 142
Docket No.: 20150255
Filing Date: 7/7/2016
Case Type: Appeal - Civil - Insurance
Author: Kapsner, Carol

Highlight: When the evidence presented at trial is sufficient to create an issue of material fact, judgment as a matter of law is inappropriate.
A party must object to a jury instruction to argue it was improper on appeal. When the parties do not object to an instruction, it becomes the law of the case.

Constellation Development, LLC v. Western Trust Co., et al. 2016 ND 141
Docket No.: 20150319
Filing Date: 7/7/2016
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: The substance of an agreement controls, not the titles or labels attached by the parties.
While a right of first refusal to purchase real estate is triggered when the owner receives an offer from a third party and decides to sell, a right of first offer is triggered when the owner decides to offer the property for sale without first receiving an offer from a third party.
A contract required by the statute of frauds to be in writing cannot be modified by a subsequent unexecuted oral agreement.