Opinions

Erickson, et al. v. Erickson, et al. 2010 ND 86
Docket No.: 20090325
Filing Date: 5/11/2010
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: A claim of constructive fraud requires reviewing the circumstances leading to the formation of the contract.
Constructive fraud is not a basis to rescind a contract formed with free consent.

Sheets v. Farhart Law Firm, et al. 2010 ND 85
Docket No.: 20090231
Filing Date: 5/11/2010
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: On appeal from a bench trial, a district court's findings of fact will not be overturned unless clearly erroneous.
A finding of fact is clearly erroneous if induced by an erroneous view of the law, no evidence exists to support it, or we are left with a definite and firm conviction the district court made a mistake.

Interest of A.R. (CONFIDENTIAL) 2010 ND 84
Docket No.: 20090197
Filing Date: 5/11/2010
Case Type: Appeal - Criminal - Juvenile Law
Author: Maring, Mary

Highlight: A violation of the disorderly conduct statute does not necessarily depend on the particular content of the speech involved, but on the behavior.
The First Amendment protections do not prevent the State from punishing fighting words that tend to incite an immediate breach of the peace.
A fundamental element of adequate notice is that allegations must be stated with particularity, giving notice of specific grounds and factual claims.

Arnegard, et al. v. Cayko, et al. 2010 ND 83
Docket No.: 20090222
Filing Date: 5/11/2010
Case Type: Appeal - Civil - Tax Realted
Author: VandeWalle, Gerald

Highlight: The primary objective in interpreting a statute is to determine the intent of the legislature by first looking at the language of the statute and giving words their plain, ordinary, and commonly understood meaning, unless the words are defined in the code or the drafters clearly intended otherwise.
An individual claiming a tax exemption has the burden of establishing exempt status.
A residence does not qualify for a farm residence tax exemption under N.D.C.C. 57-02-08(15) if it is occupied by an individual whose nonfarm income exceeds his or her farm income for three consecutive years preceding the year for which the exemption is applied or the individual's nonfarm income exceeds $40,000 each year during the three preceding years.

State v. Gietzen 2010 ND 82
Docket No.: 20090307
Filing Date: 5/11/2010
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: After a chemical analysis is received into evidence, the propriety of the blood draw is a question of fact affecting the weight to be given the results of the chemical analysis.
Form 104 can establish the evidentiary foundation for the admission of chemical analyses.
Form 104 provides evidentiary foundation and does not seek to conclusively establish an element of the charged crime.

Jacob v. State 2010 ND 81
Docket No.: 20090340
Filing Date: 5/11/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: Proposed expert testimony must be viewed within the context of the other evidence and the overall conduct of the trial when a post-conviction relief petitioner alleges ineffective assistance of counsel.

Perius v. Nodak Mutual Ins. Co., et al. 2010 ND 80
Docket No.: 20090239
Filing Date: 5/11/2010
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: Affidavits supporting and opposing a motion for summary judgment must be made on personal knowledge, set forth facts that would be admissible in evidence, and show affirmatively the affiant is competent to testify to the matters stated in the affidavit.
An affidavit of an expert submitted in opposition to a supported motion for summary judgment must set forth specific facts showing there is a genuine issue for trial.

State v. Ebertz 2010 ND 79
Docket No.: 20090245
Filing Date: 5/11/2010
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: The Supreme Court has authority under N.D. Const. art. VI, sec. 3, to promulgate the procedural rules followed by the courts, and a procedural rule adopted by the Supreme Court prevails in a conflict with a statutory procedural rule.
Under N.D.R.Crim.P. 32.1, when a court orders a deferred imposition of sentence, the defendant's case will automatically be dismissed sixty-one days after probation terminates or expires, unless the court orders otherwise before dismissal.

Delvo v. State 2010 ND 78
Docket No.: 20090291
Filing Date: 5/11/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: Summary disposition of a post-conviction relief application is appropriate if the applicant, after being put on notice the State was putting him to his or her proof, fails to supplement the application with competent admissible evidence showing a genuine issue of material fact.

Tarnavsky v. Rankin 2010 ND 77
Docket No.: 20100035
Filing Date: 5/11/2010
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Per Curiam

Highlight: Order denying motion for relief from judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(1),(4), and (7), and double costs, including reasonable attorney fees in the nominal amount of $500, are awarded to the appellee for defending a frivolous appeal.