Opinions

Pokrzywinski v. N.D. Dep't of Transportation 2014 ND 131
Docket No.: 20140043
Filing Date: 6/24/2014
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: A report and notice form that includes the driver crashed, an odor of alcoholic beverage was detected, and the driver admitted consuming alcohol may be sufficient to support an officer's reasonable grounds to believe a driver operated a motor vehicle while under the influence of intoxicating liquor.
Under the implied consent law, whether a driver was incapable of refusal is a question of fact.

State v. Cone 2014 ND 130
Docket No.: 20130236
Filing Date: 6/24/2014
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Highlight: A district court has discretion in applying a remedy for a discovery violation, and a court's decision not to exclude evidence or impose another sanction does not constitute an abuse of discretion unless the defendant shows he was significantly prejudiced by the violation.
The admission of evidence the defendant previously moved to exclude is not reversible error if the defendant presented the evidence before the court ruled on the defendant's motion.

Herrman v. N.D. Dep't of Transportation 2014 ND 129
Docket No.: 20130338
Filing Date: 6/24/2014
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Constitutional questions will not be decided on appeal if a dispute may be decided on other grounds.
Absent authority and a reasoned analysis to support it, the mere assertion of a statute's unconstitutionality is insufficient to adequately raise a constitutional question.
If an arrested person requests to consult with an attorney before deciding to take a chemical test, the person must be given a reasonable opportunity to do so if it does not materially interfere with the administration of the test.

C&C Plumbing and Heating, LLP v. Williams County, et al. 2014 ND 128
Docket No.: 20130297
Filing Date: 6/24/2014
Case Type: Appeal - Civil - Contracts
Author: McEvers, Lisa K. Fair

Highlight: If a party fails to plead and adequately brief unconscionability to the district court, the issue will not be considered on appeal.
A no damages for delay clause exculpates an owner from liability for damages resulting from delays in the performance of the contractor's work.
Active interference is a well-recognized exception to the enforceability of a no damages for delay clause.
A district court's determination of the amount of damages caused by a breach of contract is a finding of fact subject to the clearly erroneous standard of review.

Meier v. Meier 2014 ND 127
Docket No.: 20130353
Filing Date: 6/24/2014
Case Type: Appeal - Civil - Divorce - Property
Author: McEvers, Lisa K. Fair

Highlight: A motion for relief from judgment must be made within a reasonable time.

Hale, et al. v. Ward County, et al. (cross-ref. w/20110171) 2014 ND 126
Docket No.: 20130348
Filing Date: 6/24/2014
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: A private person may maintain an action for a public nuisance if the public nuisance is specially injurious to that person or that person's property, but not otherwise.
A public nuisance is specially injurious to a private person if the person suffers harm of a kind different from that suffered by other members of the public exercising a right subject to the interference and common to the general public.

Chisholm v. State 2014 ND 125
Docket No.: 20130406
Filing Date: 6/24/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: A district court may summarily deny a meritless application for post-conviction relief if the claims in the application are facially invalid.
An applicant for post-conviction relief must be given notice and an opportunity to present evidence supporting his application before the court dismisses his application relying on matters outside the application.

State v. Daniels 2014 ND 124
Docket No.: 20130339
Filing Date: 6/24/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: The scope of consent is measured objectively by what a reasonable person would have understood by the exchange between the police and the suspect.
To sustain a finding of consent, the State must show affirmative conduct by the person alleged to have consented that is consistent with the giving of consent, rather than merely showing that the person took no affirmative actions to stop the police from searching.

Tank v. Citation Oil & Gas Corp., et al. 2014 ND 123
Docket No.: 20130375
Filing Date: 6/24/2014
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: VandeWalle, Gerald

Highlight: A Pugh clause in an oil and gas lease severs a lease where less than all of the leasehold is included in a single unit and allows the lease to expire on a portion of the leased property if certain conditions are met.
Undeveloped land is is land that does not have a completed well capable of producing oil or gas in paying quantities.

Devine v. Hennessee 2014 ND 122
Docket No.: 20130347
Filing Date: 6/24/2014
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: To properly determine an obligor's child support obligation, income must be sufficiently documented through the use of tax returns, current wage statements, and other information to fully apprise the court of all gross income.
Because a proper finding of income is essential to determine the correct amount of child support under the child support guidelines, the trial court must clearly set forth how it arrived at the amount of income and the level of support.