Opinions

Guthmiller Farms v. Guthmiller, et al. 2013 ND 248
Docket No.: 20130156
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: A limited liability partnership that loses its registration is still a partnership for the purposes of conducting business. A successor partnership has the ability to sue and be sued in the name of the partnership under N.D.C.C. 45-15-07.
A consideration clause in an agreement is presumptive evidence that consideration exists for the agreement.
Consideration may be executed or executory in whole or in part, so long as it was given in consideration of the agreement at issue.

Interest of D.O. (Confidential) 2013 ND 247
Docket No.: 20130174
Filing Date: 12/19/2013
Case Type: Appeal - Criminal - Juvenile Law
Author: Crothers, Daniel John

Highlight: When a defendant argues false or misleading testimony was presented in support of a search warrant, a Franks hearing must be held to determine whether law enforcement omitted facts with the intent or in reckless disregard of whether they were misleading. The affidavit also must not have been sufficient to support probable cause for the search warrant if omitted information had been included.
All information providing probable cause must be considered together, and in a commonsense and realistic fashion.
The right to confrontation is a trial right and does not apply to the same extent in pretrial hearings.
The State must show reasonable grounds exist to transfer a juvenile's case to the district court.

Peltier v. State (consolidated w/20130010) 2013 ND 246
Docket No.: 20120447
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: A clerical error correctable under N.D.R.Crim.P. 36 includes a failure to accurately record action taken by the court, but the rule does not extend to correction of errors of substance.
Resentencing under N.D.R.Crim.P. 35 is proper in order to correct an illegal sentence.
Probationary sentences for conviction of the crime of failure to register as a sexual offender are imposed under N.D.C.C. 12.1-32-15(9), not N.D.C.C. 12.1-32-06.1(3).

Krueger v. Krueger (Cross-reference w/20070196) 2013 ND 245
Docket No.: 20130129
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: A party seeking a contempt sanction must clearly and satisfactorily prove the alleged contempt was committed. An inability to comply with an order is a defense to contempt proceedings, but the alleged contemnor has the burden to prove the defense.

Stensland v. Disciplinary Board 2013 ND 244
Docket No.: 20130008
Filing Date: 12/19/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A suspended lawyer has the burden of establishing by clear and convincing evidence the requisite honesty and integrity to be reinstated to the practice of law.
A suspended lawyer who is engaging in the unauthorized practice of law and who makes false claims to the Supreme Court has failed to satisfy his burden for reinstatement.

Rath v. Rath (cross reference w/20130327 & 20130025) 2013 ND 243
Docket No.: 20130184
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Technical violations of a court order do not necessarily require a finding of contempt.
A district court's decision on a motion for recusal is reviewed under the abuse of discretion standard.

State, et al. v. B.B., et al. (confidential) 2013 ND 242
Docket No.: 20130178
Filing Date: 12/13/2013
Case Type: Appeal - Civil - Paternity
Author: Sandstrom, Dale

Highlight: A paternity and support claim can be bifurcated from a related custody action.
A state district court has jurisdiction over a paternity and support action against a non-Indian.

Dahm v. Stark County Board of County Commissioners 2013 ND 241
Docket No.: 20130238
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: The decision of a board of county commissioners on whether to approve an application for a zoning change and plat approval will be affirmed unless the board acted arbitrarily or unreasonably, or if there is not substantial evidence supporting the decision.
On appeal from a decision of a county board, a reconsideration of the evidence is limited to the extent that such evidence was presented to the county board, and the burden is on the moving party to show that the decision of the county board was arbitrary, capricious, or unreasonable.
The moving party cannot turn an appeal from a denial of a change in zoning request into an inverse condemnation action.

Bahtiraj v. State 2013 ND 240
Docket No.: 20130113
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: Without more, the second Strickland prong is not satisfied by a self-serving statement that the petitioner would have insisted on going to trial. Factors to consider when determining the rationality of rejecting a guilty plea and insisting on going to trial include immigration consequences, strength of the case against the petitioner, and rational defenses to the charged crime.

State v. Otto 2013 ND 239
Docket No.: 20130096
Filing Date: 12/19/2013
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: The automobile exception to the Fourth Amendment's warrant requirement applies to a readily mobile camper that is not in a place regularly used for residential purposes.