Opinions

Interest of A.B. (CONFIDENTIAL) 2003 ND 98
Docket No.: 20020309
Filing Date: 6/17/2003
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: VandeWalle, Gerald

Highlight: A juvenile court does not reversibly err in reversing a judicial referee's recommendation where the record before the juvenile court includes the undisputed factual matters necessary for resolution of the case and the issues involved in the case are legal issues.
Under the Indian Child Welfare Act, good cause not to transfer a child custody proceeding to tribal court exists if the proceeding is at an advanced stage when the petition to transfer is received, or if the evidence to decide the case cannot be adequately presented in the tribal court without undue hardship to the parties or the witnesses.
The Indian Child Welfare Act does not violate the substantive due process rights or equal protection rights of an Indian child.

Cue v. State 2003 ND 97
Docket No.: 20030013
Filing Date: 6/17/2003
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: A court is required to give a criminal defendant, upon sentencing, credit for all time spent in custody as a result of the criminal charge or conduct for which the sentence is being imposed.
A defendant has the burden of showing he is entitled to additional sentence credit for time served in custody.

Peters-Riemers v. Riemers 2003 ND 96
Docket No.: 20020225
Filing Date: 6/17/2003
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A moot issue will be determined if the controversy is one of great public interest and involves the authority and power of public officials or if the matter is capable of repetition, yet evading review.
An appeal does not stay proceedings for enforcement of a judgment.
An indigent pro se defendant in a privately-initiated contempt proceeding must be informed of the right to court-appointed counsel when a remedial contempt sanction includes the likelihood of incarceration.

Boser v. Hanson, et al. 2003 ND 95
Docket No.: 20020206
Filing Date: 6/17/2003
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: Jury instructions must fairly and adequately inform the jury of the applicable law.
A trial court may properly refuse to submit an inapplicable or irrelevant instruction to the jury.
Except as otherwise provided, N.D.C.C. 39-24-09 prohibits operating a snowmobile on a street or highway except while crossing a street or highway encountered as an obstacle to be overcome, rather than in its intended purpose of transportation along it.

Spath v. State (cross-ref. w/990302 & 970230) 2003 ND 94
Docket No.: 20030022
Filing Date: 6/17/2003
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Denial of an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Marcotte's Builders Supply v. Strobel, et al. 2003 ND 93
Docket No.: 20020354
Filing Date: 6/17/2003
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Judgment in a home construction contract dispute is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Haugenoe, et al. v. Bambrick, et al. 2003 ND 92
Docket No.: 20020252
Filing Date: 6/6/2003
Case Type: Appeal - Civil - Malpractice
Author: Maring, Mary

Highlight: If, in a medical malpractice case, the alleged malpractice is beyond the understanding of a layperson, an expert opinion must be obtained within three months of the commencement of the action to support the allegation of medical malpractice.
Issues not briefed by an appellant are deemed abandoned.
The requirement of obtaining an expert opinion within three months of the commencement of a medical malpractice action does not apply to informed consent claims.

Northern Plains Alliance, L.L.C. v. Mitzel, et al. 2003 ND 91
Docket No.: 20020324
Filing Date: 6/3/2003
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: When parties enter an agreement for the sale of property which is expressly subject to a right of first refusal by a third party, the contract is conditional and becomes binding on the seller only if the right of first refusal is not exercised.
Acceptance of an option for the sale of land within the time allowed and according to its terms converts the option into a binding executory contract of sale.

Sonsthagen v. Sprynczynatyk 2003 ND 90
Docket No.: 20020297
Filing Date: 6/5/2003
Case Type: Appeal - Administrative - Department of Transportation
Author: Maring, Mary

Highlight: For a law enforcement officer to testify about the results of a sobriety test, the proper foundation to be established is evidence of the officer's training and experience in administering the test and evidence that the test was properly administered.
Probable cause to arrest for driving under the influence of drugs exists when an officer: 1) observes signs of a driver's physical or mental impairment; and 2) has reason to believe the impairment is caused by drugs.

State v. Corum 2003 ND 89
Docket No.: 20020230
Filing Date: 6/5/2003
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: Illegally obtained evidence cannot be the basis for a magistrate's finding of probable cause to support a search warrant.
To challenge a search warrant on the basis that police intentionally omitted relevant information when applying for the warrant, the defendant must show that probable cause would not have existed if the omitted information had been provided to the magistrate.
Failure to inform a magistrate about an informant's criminal history and pending criminal charges is not fatal to the validity of a search warrant.