Opinions

Gonzalez v. Tounjian, et al. (Cross-reference w/20020263) 2004 ND 156
Docket No.: 20040015
Filing Date: 8/4/2004
Case Type: Appeal - Civil - Personal Injury
Author: Sandstrom, Dale

Highlight: When a judgment is affirmed in part and reversed in part on appeal, post-judgment interest on the affirmed portion runs from the date of the original judgment.

Miller v. Workforce Safety and Insurance, et al. 2004 ND 155
Docket No.: 20040064
Filing Date: 7/29/2004
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald W.

Highlight: Ex parte communications are those that are without notice and opportunity for all parties to participate in the communication.
Workforce Safety and Insurance can consult with its outside legal counsel in reviewing a pending administrative law judge's recommendation as long as those communications are not ex parte.

Ag Acceptance Corp. v. Glinz, et al. 2004 ND 154
Docket No.: 20030197
Filing Date: 7/26/2004
Case Type: Appeal - Civil - Debtor/Creditor
Author: Neumann, William

Highlight: A contract must be interpreted to give effect to the mutual intention of the parties as it existed at the time of contracting, and when the contract has been reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible.
An agricultural operating loan evidenced by a promissory note specifying that all principal and interest shall be due on a date certain shortly after completion of that crop year is not a revolving charge agreement.
To establish an antitrust violation based upon illegal tying, it must be shown that the seller possesses significant market power in the tying market.

Riemers v. Peters-Riemers, et al. 2004 ND 153
Docket No.: 20030353
Filing Date: 7/23/2004
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: Collateral estoppel generally bars new litigation, based on a different claim, of issues that were or must have been determined in the prior suit.
Collateral estoppel bars relitigation of an issue if: (1) the issue decided in the prior adjudication is identical to the one presented; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication; and (4) the party against whom the plea is asserted had a fair opportunity to be heard on the issue.
A court of this state that has made a child custody determination has exclusive, continuing jurisdiction over the determination.
No civil action lies for perjury in another proceeding.
Res judicata means that a valid, existing final judgment from a court of competent jurisdiction is conclusive, with regard to the issues raised, or those that could have been raised, and determined as to the parties and their privies in all other actions.
A trial court's denial of a motion for a continuance to amend a complaint will not be reversed unless the trial court abused its discretion.
A trial court's denial of a motion for a continuance to conduct additional discovery will not be reversed unless the trial court abused its discretion.

Ernst v. State 2004 ND 152
Docket No.: 20030330
Filing Date: 7/22/2004
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Neumann, William

Highlight: A guilty plea is a 'critical stage' in the criminal process so the constitutional right to counsel attaches.
A plea may be adjudged involuntary and withdrawn if a defendant received ineffective assistance of counsel for the plea. To prove an ineffective assistance of counsel, a defendant must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.
Failure to file pretrial motions, by itself, does not equate to ineffective assistance of counsel.

State v. Berger 2004 ND 151
Docket No.: 20030322
Filing Date: 7/22/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: When no separate judgment of conviction has been entered and an order deferring imposition of sentence complies with the requirements of N.D.R.Crim.P. 32(b) for criminal judgments, the order serves as the judgment and is appealable.
When considered in totality, a driver's erratic driving, belligerent and physically aggressive conduct, use of profanity, extreme nervousness, physical shaking and inability to stand still, glossy and watery eyes, and failure of a light reactivity field sobriety test may be sufficient to create probable cause to arrest the driver for driving under the influence of drugs.

Adoption of S.R.F. (CONFIDENTIAL) 2004 ND 150
Docket No.: 20030364
Filing Date: 7/22/2004
Case Type: Appeal - Civil - Adoption
Author: Sandstrom, Dale

Highlight: De novo review under the Revised Uniform Adoption Act is abolished, and cases to the contrary are overruled.
A parent's abandonment of a child is a question of fact and may be inferred from circumstantial evidence of the parent's conduct.

State v. Mathre 2004 ND 149
Docket No.: 20030312
Filing Date: 7/22/2004
Case Type: Appeal - Criminal - Assault
Author: VandeWalle, Gerald

Highlight: The appellant must provide a transcript on appeal, and the appellant suffers any consequences resulting from the lack of a transcript to review.
An arrest is not unlawful merely because there is no subsequent conviction of the crime for which an individual is arrested.
A person is not justified in using force for the purpose of resisting arrest, execution of process, or other performance of duty by a public servant under color of law, but excessive force may be resisted.

Johnson v. ND Dept. of Transportation 2004 ND 148
Docket No.: 20040065
Filing Date: 7/22/2004
Case Type: Appeal - Administrative - Department of Transportation
Author: Neumann, William

Highlight: An officer who properly arrests a driver for DUI and who obtains, within the officer's jurisdiction, the driver's consent to submit to a blood test can transport the arrestee outside the jurisdiction for the test.

State v. Stockert 2004 ND 146
Docket No.: 20030105
Filing Date: 7/22/2004
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Sandstrom, Dale

Highlight: A judge is required to disqualify if the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceedings.
When personal knowledge about a matter has been obtained by a judge within another legal proceeding, disqualification is not called for.
When deciding whether or not to recuse, a judge must determine whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.
In deciding whether a judge should be disqualified because of a person's involvement in a judicial campaign, the relevant factors include: 1) the significance of the person's campaign involvement; 2) whether the campaign is under way or how recently it ended; 3) whether there is an ongoing relationship between the person and the judge; 4) the significance of the person's involvement in the current case, including the closeness or remoteness of the involved individual to the case; 5) whether the issue was promptly raised; and 6) evidence of judicial bias.