Opinions

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.

Gottus v. Job Service North Dakota 2011 ND 204
Docket No.: 20110127
Filing Date: 10/18/2011
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: Maring, Mary

Highlight: An employee's repeated failure to perform job responsibilities competently, after demonstrating the ability to do so, may rise to the level of misconduct.
A person discharged for misconduct is ineligible to receive unemployment benefits.

State v. Mackey 2011 ND 203
Docket No.: 20100377
Filing Date: 10/18/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: When a court imposes an illegal sentence and subsequently corrects that sentence, a defendant is not entitled to withdraw his plea under N.D.R.Crim.P. 35, and a manifest injustice does not exist to allow a defendant to withdraw his plea under N.D.R.Crim.P. 11(d).

Sall v. Sall 2011 ND 202
Docket No.: 20100360
Filing Date: 10/18/2011
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: To warrant a remedial sanction for contempt of court, there must be a willful and inexcusable intent to violate a court order.
A "stale claim" is a claim that is barred by the statute of limitations or the defense of laches.
Laches does not arise from a delay or lapse of time alone, but is a delay in enforcing one's rights which works a disadvantage to another.

Wong v. State (cross-reference 20100171) 2011 ND 201
Docket No.: 20110088
Filing Date: 10/18/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: To succeed on an ineffective assistance of counsel claim, the petitioner must overcome the strong presumption that an attorney's representation is reasonable.
If the petitioner fails to show that his or her attorney's representation fell below an objective standard of reasonableness on a claim of ineffective assistance of counsel, the Court need not analyze whether the petitioner was prejudiced by the attorney's representation.

State v. Nickel (Consolidated w/20100411 & 20100412) 2011 ND 200
Docket No.: 20100410
Filing Date: 10/18/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Whether an administrative agency has substantially complied with emergency rulemaking requirements is a question of fact subject to the clearly erroneous standard of review.