Opinions

Hill, et al. v. Lindner, et al. 2009 ND 132
Docket No.: 20080334
Filing Date: 7/9/2009
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: An incidental business use does not violate a covenant restricting use of property to residential purposes only.

Reciprocal Discipline of Thoms 2009 ND 131
Docket No.: 20090191
Filing Date: 7/14/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.

State v. McAvoy 2009 ND 130
Docket No.: 20090024
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: A convicted sex offender must register an address with law enforcement within three days of coming into a county in which the individual resides or is temporarily domiciled.
When reviewing challenges to the sufficiency of the evidence, the evidence and all reasonable inferences drawn from such evidence are viewed most favorably to the verdict.

State v. Zwicke, Jr. 2009 ND 129
Docket No.: 20090002
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Under the automobile exception to the warrant requirement, law enforcement officers may search for illegal contraband without a warrant when probable cause exists that certain identifiable objects are probably connected with criminal activity and are probably to be found in the vehicle.
To the extent that State v. Meadows can be read to require something more than mobility for exigent circumstances for an automobile search, it is overruled.
Law enforcement officers are not prevented from searching for and seizing evidence merely because the officers might already have sufficient evidence to sustain a conviction.

Fehl-Haber v. State (Cross Ref w/20060086) 2009 ND 128
Docket No.: 20090026
Filing Date: 7/9/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: District court order denying application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Neva 2009 ND 127
Docket No.: 20090054
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: A defendant whose previous concurrent sentences are converted into consecutive sentences upon revocation of his probation is entitled to receive credit for the time he spent in custody only toward the first of the converted consecutive sentences.

Steinmeyer v. Department of Transportation 2009 ND 126
Docket No.: 20090096
Filing Date: 7/9/2009
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: Fair administration of an Intoxilyzer test may be established by proof that the method approved by the State Toxicologist for conducting the test has been scrupulously followed. However, 'scrupulous' compliance does not mean 'hypertechnical' compliance.
"Observing" an Intoxilyzer test subject is not the only manner of "ascertaining" that the subject had nothing to eat, drink, or smoke within the twenty minutes prior to the collection of the breath sample as required by the approved method.

City of Grand Forks v. Corman 2009 ND 125
Docket No.: 20080289
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: In a transferred case from a municipal court to a district court, the municipal court retains the authority to consider a defendant's application for court-appointed counsel.
A district court denying a defendant's application for court-appointed counsel in a transferred case from a municipal court does not abuse its discretion in denying the application on the basis that it is not the proper forum.
A defendant who has been advised of his right to counsel and the perils of self-representation waives voluntarily, knowingly, and intelligently his right to counsel if he chooses to represent himself.

Bice, et al. v. Petro-Hunt, L.L.C., et al. (cross-reference w/20030306) 2009 ND 124
Docket No.: 20080265
Filing Date: 7/9/2009
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Crothers, Daniel John

Highlight: Where gas has no market value at the well and the lease requires royalty to be paid based upon the market value of the gas at the well, lessee can deduct post-production costs incurred in making the gas marketable prior to calculating the royalty.
The "at the well" rule in interpreting oil and gas leases is adopted, and the first marketable product doctrine is rejected.
The language of a contract is to govern its interpretation if the language is clear and explicit and does not involve an absurdity.
Normally, whether a risk-capital charge is commercially reasonable is a question of fact, but when the parties stipulate to the facts in the record and request that the court determine the issue according to the parties' motions for summary judgment, the court can decide the issue as a matter of law.
A party resisting summary judgment must present competent admissible evidence establishing a genuine issue of material fact and cannot simply rely upon the pleadings or unsupported, conclusory allegations.

State v. Maki 2009 ND 123
Docket No.: 20080279
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: In reviewing a question of sufficiency of the evidence under N.D.R.Crim.P. 29(a), conflicts in the evidence are not resolved and the credibility of witnesses is not reweighed.
On appeal, the judgment is affirmed if there is evidence which could have allowed the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.
Jurors are presumed to know and apply the common and ordinary meaning of words.