Opinions

State v. Demarais (Consolidated w/20080182) 2009 ND 143
Docket No.: 20080181
Filing Date: 7/21/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: A jury may find a defendant guilty even though evidence exists which, if believed, could lead to a not guilty verdict.
In nearly all possession of drug paraphernalia cases, the State will be forced to prove by circumstantial evidence the intent to use the paraphernalia for the purpose of ingesting, preparing, or storing a controlled substance.
A verdict based upon circumstantial evidence carries the same presumption of correctness as other verdicts.

Shull v. Walcker, et al. 2009 ND 142
Docket No.: 20090021
Filing Date: 7/21/2009
Case Type: Appeal - Civil - Constitutional Law
Author: VandeWalle, Gerald

Highlight: A motion for relief from judgment should not be used to relieve a party from free, calculated and deliberate choices he or she has made, and relief should be granted only in exceptional circumstances.
The failure of a condition precedent is an affirmative defense which must be pled in the answer to a filed complaint.
The decision of a respondent to not answer a complaint, to not file a response to a motion for default judgment, and to disregard the court's recommendations that he seek counsel until after default judgment has been entered against him does not constitute exceptional circumstances to justify relief under N.D.R.Civ.P. 60(b).
Whether an earnest money clause in a purchase agreement limits a seller's remedies to the earnest money itself is a matter of contractual interpretation.

State v. Myers (Consolidated w/20090004) 2009 ND 141
Docket No.: 20080104
Filing Date: 7/21/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: When a problem arises during a trial, the party affected must bring the irregularity to the court's attention and seek appropriate remedial action.
If juror misconduct is noticed and the criminal defendant does not object or request a mistrial, reversal requires obvious error.
Because the court took steps to ensure the defendant had a fair trial, the defendant's right to a fair trial was not violated and obvious error did not exist when a juror allegedly slept during the arresting officer's testimony.
If it is easier to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice, that course should be followed.

Grager v. Schudar, et al. 2009 ND 140
Docket No.: 20080302
Filing Date: 7/21/2009
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: An appellant assumes the consequences and the risks for failing to provide a complete transcript of proceedings in the trial court, and if the record on appeal does not provide for a meaningful and intelligent review of an issue, the supreme court may decline to review the issue.
On appeal, jury instructions must be viewed as a whole, and if they correctly advise the jury of the law, they are sufficient although parts of them, standing alone, may be erroneous and insufficient.
Generally, one who consents to conduct that would otherwise be an intentional tort cannot recover damages for that conduct.
An adult prisoner's apparent consent to sexual conduct with a jailer imposes neither absolute liability on the jailer nor a complete bar to recovery in the prisoner's civil action premised upon the sexual conduct.

Schweitzer v. Job Service ND, et al. 2009 ND 139
Docket No.: 20080341
Filing Date: 7/21/2009
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: Crothers, Daniel John

Highlight: A person may not receive unemployment benefits if the person was discharged from employment for misconduct.
One incident of bad judgment can be disqualifying misconduct if it results in a violation of an important employer interest.

State v. Bornhoeft 2009 ND 138
Docket No.: 20090067
Filing Date: 7/21/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Sandstrom, Dale

Highlight: A district court does not err by denying a motion to dismiss charges of disorderly conduct when the facts supporting the complaint describe conduct that can be the basis of such charges under the disorderly conduct statute, although the defendant also yelled obscenities at a law enforcement officer.

Department of Labor v. Matrix Properties, et al. 2009 ND 137
Docket No.: 20080224
Filing Date: 7/21/2009
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: The two-year statute of limitations for a civil discriminatory housing practice action based on design and construction defects is triggered when the building's certificate of occupancy is issued.

Matter of Emelia Hirsch Trust 2009 ND 135
Docket No.: 20080209
Filing Date: 7/16/2009
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: An issue or argument not raised or considered in the district court cannot be raised for the first time on appeal.
An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which evidences bad faith.

Chambering of the New Judgeship in the Southeast Judicial District 2009 ND 134
Docket No.: 20090163
Filing Date: 7/15/2009
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: New judgeship to be chambered in Jamestown.

Chambering of the New Judgeship in the Northwest Judicial District 2009 ND 133
Docket No.: 20090162
Filing Date: 7/15/2009
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: New judgeship to be chambered in Minot.