Opinions

Hann v. Disciplinary Board 2014 ND 137
Docket No.: 20140171
Filing Date: 7/2/2014
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reinstated.

State v. Cook 2014 ND 136
Docket No.: 20140040
Filing Date: 6/27/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: An appellant assumes the consequences and the risk for the failure to file a complete transcript. If the record on appeal does not allow for a meaningful and intelligent review of alleged error, the issue will not be reviewed.
When an appellant fails to comply with the rules of appellate procedure so that meaningful review of his issues is impossible, the appeal may be dismissed.

Matter of Emelia Hirsch Trust 2014 ND 135
Docket No.: 20130365
Filing Date: 6/26/2014
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: A district court has discretion to determine claims are frivolous and order payment of attorney's fees.
An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation evidencing bad faith.

State v. Rogers 2014 ND 134
Docket No.: 20130357
Filing Date: 6/24/2014
Case Type: Appeal - Criminal - Homicide
Author: VandeWalle, Gerald

Highlight: Whether a suspect is in custody, and therefore entitled to Miranda warnings, is a mixed question of fact and law which is fully reviewable on appeal.
Law enforcement is required to give Miranda warnings only when a person is subject to custodial interrogation.
A suspect is not in police custody simply because he or she is under a medical hold and does not have the ability to leave the hospital.

Lund v. Lund, et al. (cross reference with 20120210) 2014 ND 133
Docket No.: 20130373
Filing Date: 6/24/2014
Case Type: Appeal - Civil - Contracts
Author: McEvers, Lisa K. Fair

Highlight: Whether an implied-in-fact contract existed between parties is a question of fact subject to the clearly erroneous rule.
Unjust enrichment is an equitable doctrine based upon a quasi or constructive contract implied by law to prevent a person from being unjustly enriched at the expense of another.

Mairs v. Mairs 2014 ND 132
Docket No.: 20130293
Filing Date: 6/24/2014
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: Any issue regarding whether a prima facie case has been established for modification of primary residential responsibility is moot once an evidentiary hearing is held.
Although a separate finding is not required for each statutory best-interest factor, the court's findings must contain sufficient specificity to show the factual basis for the residential responsibility decision.

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.