Opinions

AmeriFirst Home Improvement Finance Co. v. Kile, et. al 2009 ND 184
Docket No.: 20090187
Filing Date: 11/17/2009
Case Type: Appeal - Civil - Debtor/Creditor
Author:

Highlight: District court judgment ordering payment of a contractual debt is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (6).

Thompson, et al. v. Schmitz, et al. 2009 ND 183
Docket No.: 20080191
Filing Date: 10/16/2009
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: Although a pleading may be impliedly amended by the introduction of evidence which varies the theory of the case and which is not objected to on the grounds it is not within the issues in the pleadings, consent to try an issue outside the pleadings cannot be implied from evidence which is relevant to the pleadings but which also bears on an unpleaded issue.
Equity regards as done that which ought to have been done.
Corporate assets belong to the corporation, not to the shareholders.

State v. Ness 2009 ND 182
Docket No.: 20090046
Filing Date: 10/15/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: To have standing to raise a vagueness challenge, a litigant must almost always demonstrate that the law in question is vague as applied to his own conduct, without regard to its potentially vague application in other circumstances.
A court may refuse to give jury instructions that are irrelevant or inapplicable.
The opportunity to cross-examine a witness is the primary mode of safeguarding a defendant's confrontation rights, but the scope of the cross-examination is in the court's discretion.

Martin v. N.D. Department of Transportation 2009 ND 181
Docket No.: 20090105
Filing Date: 10/13/2009
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Police checkpoints are not per se unconstitutional under the Fourth Amendment of the United States Constitution or Article I, Section 8 of the North Dakota Constitution. A checkpoint seizure is unconstitutional if it is unreasonable.
The reasonableness of a checkpoint seizure is determined by balancing three prongs: the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest and the severity of the interference with individual liberty. The weight given each prong is based on its underlying facts, and the underlying facts are viewed within the totality of the circumstances.
The gravity of the public concern addressed by a checkpoint seizure is measured by the magnitude of the societal harm caused by a specific problem.
The degree to which a checkpoint advances the public interest calls for a searching examination of the checkpoint's effectiveness.
The severity of interference with individual liberty caused by a checkpoint seizure is measured by gauging the objective and subjective levels of intrusion on individual motorists. A checkpoint's objective level of intrusion is measured by the duration of the seizure and the intensity of the investigation. A checkpoint's subjective level of intrusion is measured by the fear and surprise engendered in law-abiding motorists by the nature of the stop.

Hager, et al. v. City of Devils Lake 2009 ND 180
Docket No.: 20090050
Filing Date: 10/13/2009
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: Dismissal of a claim or action without prejudice has no res judicata effect.
Whether the injury was permanent or temporary is the determinative factor in commencing the statute of limitations in a damage action for flooding caused by construction.
When water is diverted onto property by construction or operation of a permanent structure, there is only one cause of action, successive suits may not be maintained, and the statute of limitations begins to run when harm first occurs.
The six-year statute of limitations for contract actions under N.D.C.C. 28-01-16(1) governs inverse condemnation claims brought under N.D. Const. art. I, sec. 16.
An inverse condemnation action accrues on the date the property is taken.
Under North Dakota law, a license is revocable.
An easement by estoppel may be created when (1) a landowner permits another to use land under circumstances in which it was reasonable to foresee that the user would substantially change position believing that the permission would not be revoked, (2) the user substantially changed position in reasonable reliance on that belief, and (3) injustice can be avoided only by establishment of a servitude.

Spitzer v. Bartelson 2009 ND 179
Docket No.: 20090124
Filing Date: 10/13/2009
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: In a claim for reformation of a written contract, courts may admit parol evidence to determine whether a mutual mistake exists sufficient to support reformation.
A district court's finding that a plaintiff failed to prove a mutual mistake by clear and convincing evidence will not be overturned unless clearly erroneous.

State v. Stridiron (consolidated w/20080331) 2009 ND 178
Docket No.: 20080286
Filing Date: 10/13/2009
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: Criminal judgments for robbery are summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Interest of O.F., a child (confidential) 2009 ND 177
Docket No.: 20090137
Filing Date: 10/13/2009
Case Type: Appeal - Criminal - Juvenile Law
Author: Kapsner, Carol

Highlight: A defendant claiming a double jeopardy bears the burden of proving each element of former jeopardy.
A juvenile's double jeopardy rights are not violated when the facts used to impose a sanction by a juvenile drug court are later used to support an adjudication of delinquency.
Procedural rules are not adopted by opinion in litigated appeals.

State v. McLaren 2009 ND 176
Docket No.: 20090125
Filing Date: 10/13/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: Reasonable suspicion to stop a vehicle exists when an officer observes a vehicle displaying expired registration tabs, license plates, and a temporary registration certificate.

Estate of Schiermeister (Consolidated w/20090169) 2009 ND 175
Docket No.: 20080287
Filing Date: 10/13/2009
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Per Curiam

Highlight: Orders directing a final accounting and distribution of an estate are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).