Opinions

Wetsch v. ND Dept. of Transportation 2004 ND 93
Docket No.: 20030254
Filing Date: 5/5/2004
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Refusal to submit to an onsite screening test constitutes a violation of informed consent law and may properly result in a one-year suspension of an individual's driver's license.
An individual's demand to have blood drawn for a chemical screening in a medical environment, such as a hospital, constitutes refusal under North Dakota's informed consent statute.

Airport Inn Enterprises, Inc. v. Ramage 2004 ND 92
Docket No.: 20040032
Filing Date: 5/5/2004
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A condition precedent is one that must be performed or happen before a duty of immediate performance arises on the promise that the condition qualifies.
When an agreement is conditioned upon obtaining financing, a condition precedent to performance of the agreement is created.
When financing is a condition precedent, there is no enforceable agreement until the financing is obtained.

All New Gutter Service, Inc. v. Dusek 2004 ND 91
Docket No.: 20030321
Filing Date: 5/5/2004
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Judgment finding no oral contract after a bench trial is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Tweeten 2004 ND 90
Docket No.: 20030151
Filing Date: 5/5/2004
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: A district court may not dismiss a case with prejudice for prosecutorial misconduct unless a hearing is held in which it is determined by clear and convincing evidence the prosecution has proceeded in bad faith.

Meyer v. Meyer 2004 ND 89
Docket No.: 20030214
Filing Date: 5/5/2004
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: A change in spousal support, which was initially awarded upon the parties' stipulation, should be made only with great reluctance by the trial court upon a showing of a material change in circumstances.
Findings of fact should be sufficiently stated so the reviewing court is able to understand the factual basis for the trial court's decision, particularly in view of our standards for modification of spousal support.
A case will be remanded if the reviewing court cannot discern the rationale for the result reached by the trial court.

State v. Helm 2004 ND 88
Docket No.: 20030273
Filing Date: 5/5/2004
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Conviction for class C felony terrorizing is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Reciprocal Discipline of Chinquist 2004 ND 87
Docket No.: 20040100
Filing Date: 4/26/2004
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Oliver-Mercer Electric Coop. v. Davis, et al. (Consol. w/ 20030158) 2004 ND 86
Docket No.: 20030157
Filing Date: 4/19/2004
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: The right to a trial by jury is determined by the character of the issues as framed by the complaint or appearing on the face of the pleadings.
A secured creditor must give reasonable notice of the time and place of a sale of collateral and must conduct the sale in a commercially reasonable manner.
When a secured creditor who failed to give proper notice seeks a deficiency judgment, the fair market value of the collateral is presumed to be equal to the debt.
For purposes of a deficiency judgment, the fair market value of the collateral must be determined at the time of the sale. A secured creditor who failed to properly notify the debtor of a sale of collateral must provide credible evidence from which the trial court can determine the fair market value of the collateral. If a secured creditor has failed to provide the debtor proper notice of the sale of collateral, the selling price of the collateral is not credible evidence.
Every aspect of a sale of collateral must be commercially reasonable, including the method, manner, time, place, and terms.

State v. Clark 2004 ND 85
Docket No.: 20030238
Filing Date: 4/19/2004
Case Type: Appeal - Criminal - Assault
Author: Kapsner, Carol

Highlight: An appellate court exercises its authority to notice obvious error cautiously and only in exceptional circumstances in which the defendant has suffered a serious injustice.
A prosecutor's closing arguments may properly draw reasonable conclusions and argue permissible inferences from the evidence, but a prosecutor may not create evidence by argument or by incorporating personal beliefs into the argument.
An argument that asks jurors to place themselves in the shoes of a party is improper and should be avoided.

Matter of the Reciprocal Discipline of Johannson 2004 ND 84
Docket No.: 20040102
Filing Date: 4/16/2004
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.