Opinions

Matter of Hehn (cross-reference 20070167) 2011 ND 214
Docket No.: 20110053
Filing Date: 11/15/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: VandeWalle, Gerald

Highlight: The district court must specify the facts upon which its conclusion is based when finding a person is a sexually dangerous individual.
The judge, rather than the psychologists, is the ultimate decision-maker in determining whether an individual meets the requirements for civil commitment.

State v. Cain 2011 ND 213
Docket No.: 20110010
Filing Date: 11/15/2011
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Highlight: A conspiratorial agreement can be proved by conduct sufficient to establish an implicit agreement to commit an offense.
A habitual offender hearing can be combined with a sentencing hearing.
Certified copies of prior judgments that were self-authenticating under N.D.R.Ev. 902(1) and (4) were "duly authenticated" under section 12.1-32-09(5), N.D.C.C.
The speedy trial provision of the Uniform Mandatory Disposition of Detainers Act, section 29-33-03, N.D.C.C., does not apply when a prisoner is being held solely on a pending charge.
When a motion in limine is denied, the objecting party must renew the objection at trial to preserve the issue for appeal.

Warnke v. Warnke 2011 ND 212
Docket No.: 20110023
Filing Date: 11/15/2011
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Where the rebuttable presumption that mail duly directed and mailed was received is contradicted by other evidence, the issue of actual notice is for the trier of fact to decide.
The district court has broad discretion in determining the quality of proof necessary to support a default judgment.

Tarnavsky v. First National Bank and Trust Co. 2011 ND 211
Docket No.: 20110151
Filing Date: 11/15/2011
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Judgment dismissing claims, awarding attorney fees and costs, and denying motion for relief from judgment is summarily affirmed under N.D.R.App.P. 35.1(a), and the case is remanded to determine reasonable attorney fees for appeal and request for injunctive relief.

State v. Mayer 2011 ND 210
Docket No.: 20110058
Filing Date: 11/15/2011
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Conviction for aggravated assault is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Coffman v. State 2011 ND 209
Docket No.: 20110130
Filing Date: 11/15/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author:

Highlight: Order dismissing application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Matter of L.D.M. (CONFIDENTIAL)(Cross-reference 20040319, 20060360 & 20100137) 2011 ND 208
Docket No.: 20110110
Filing Date: 11/15/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: Order continuing commitment as a sexually dangerous individual summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Issues not ripe for review are dismissed.

Tarnavsky v. Tschider (Cross-reference w/20090348) 2011 ND 207
Docket No.: 20110150
Filing Date: 10/24/2011
Case Type: Appeal - Civil - Malpractice
Author: Per Curiam

Highlight: Order denying motion for relief from judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (4), and double costs, and nominal attorney fees of $500, are awarded to the appellee for defending a frivolous appeal.

Peterson v. Sando 2011 ND 206
Docket No.: 20110083
Filing Date: 10/20/2011
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: Judicial estoppel applies only where a party's subsequent position is totally inconsistent with its original position.
The admissibility of evidence in an adjudicative proceeding before an administrate agency is governed by the rules of evidence, and evidence that forms the bases of opinion testimony need not be admissible in evidence for the opinion to be admitted.
Review of an administrative hearing officer's evidentiary rulings is under the abuse-of-discretion standard.

Alerus Financial v. Marcil Group, et al. 2011 ND 205
Docket No.: 20110113
Filing Date: 10/18/2011
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: Guarantors of commercial real estate loans are not afforded the protections of the anti-deficiency judgment statutes.
An action against a guarantor is based on the contract of guaranty which is an obligation distinct from the obligation imposed by a note and mortgage.
Actions to enforce a guaranty need not accompany actions to foreclose a mortgage.
A contract of guaranty creates a secondary liability while a contract of surety creates a primary liability.
A court may consider parol evidence when a written agreement is ambiguous, or when the written agreement does not reflect the parties' intent because of fraud, mistake, or accident.
A party seeking additional time for discovery before the court rules on a summary judgment motion must identify with specificity what particular information is sought, and explain how that information would preclude summary judgment and why it has not previously been obtained.