Opinions

State v. Tompkins 2011 ND 61
Docket No.: 20100234
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: Law enforcement has no duty to assist an accused in obtaining an independent blood-alcohol test. Once a reasonable request is made for an independent test, however, law enforcement must not interfere to the extent a reasonable opportunity to obtain the test is denied.
In addition to the obligation to pay for all costs associated with the independent blood-alcohol test, N.D.C.C. 39-20-02 affords an accused only the right to have the test performed, to choose the professional to administer the test, and to receive the test results.

Carkuff, et al. v. Balmer, et al. 2011 ND 60
Docket No.: 20100099
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: The language of a deed, if clear and explicit, governs its interpretation, and the parties' mutual intentions must be ascertained from the four corners of the deed, if possible.
A quitclaim deed conveys only the grantor's interest or title, if any, in property, rather than the property itself.
Generally, after-acquired title by the grantor will not inure to the benefit of the grantee under a quitclaim deed.
Use of the word "grant" in a quitclaim deed which conveyed only a grantor's "right, title and interest" in the property did not operate to pass after-acquired property rights to minerals interests.

Interest of Vondal 2011 ND 59
Docket No.: 20100221
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: Under N.D.R.Civ.P. 52(a), a trial court must find the facts specially and state separately its conclusions of law.

Nelson v. State 2011 ND 58
Docket No.: 20100383
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: Order summarily dismissing application for post-conviction relief is remanded under N.D.R.App.P. 35(a)(3).

Stephenson v. Stephenson 2011 ND 57
Docket No.: 20100237
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: All property, including retirement accounts, must be included in a marital estate before the court can determine an equitable property division.
When dividing a pension or retirement plan, a court may award the present value of the benefits or it may award a percentage of future payments if the parties cannot agree upon the present value or if there are insufficient assets for a present division.
When parties remarry after a prior divorce, all of the parties' assets become marital property again and are subject to an equitable distribution.

State v. Christian (consolidated w/20100191 & 20100192) 2011 ND 56
Docket No.: 20100190
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: Circumstantial evidence alone can be sufficient to sustain a jury's guilty verdict if the circumstantial evidence has such probative force as to enable the trier of fact to find the defendant is guilty beyond a reasonable doubt.
Constructive possession can be inferred from a totality of the circumstances.
Section 19-03.1-23(7), N.D.C.C., prohibits the possession of cocaine, regardless of the amount.

Berger v. N.D. Dept. of Transportation 2011 ND 55
Docket No.: 20100189
Filing Date: 3/22/2011
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: A hearing officer conducting an adjudicative administrative proceeding has broad discretion over the progress and conduct of the hearing, including scheduling and continuing the hearing.

Silliman v. All American Biodiesel, Inc. 2011 ND 54
Docket No.: 20100257
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: Res ipsa loquitur for fire damage requires that the accused party had control over the instrumentality that caused the fire, not merely the location of the fire.
Not the mere occurrence of a fire but rather the circumstances under which the fire originated and spread gives rise to the application of res ipsa loquitur.

Lund v. Lund 2011 ND 53
Docket No.: 20100147
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: Whether to grant a continuance lies within the sound discretion of the district court, and its decision to deny a motion for a continuance will not be reversed on appeal absent an abuse of discretion.
The mere fact that a judge has previously ruled against a party in the same or a prior proceeding does not demonstrate bias requiring disqualification.

Interest of G.L.D. (CONFIDENTIAL) 2011 ND 52
Docket No.: 20100230
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: To preclude discharge from treatment as a sexually dangerous individual, the State must prove by clear and convincing evidence that the committed individual remains a sexually dangerous individual and has serious difficulty controlling his or her behavior.
In reviewing a district court's order denying a petition for discharge from treatment as a sexually dangerous individual, an appellate court gives great deference to the district court's credibility determinations of expert witnesses and the weight to be given their testimony.