Accordingly, a party on the wrong end of a district court’s in limine
ruling cannot presume a claim of error on the part of the district
court is preserved for appellate review, post-trial. Instead, the party
must renew their position on the issue involved in the district
court’s in limine ruling, during trial, in order to preserve the issue for
appellate review.
Baker v. Autos, Inc., et. al., 2019 ND 82.
Filed 3-15-19.
In this class action case, Baker purchased a used vehicle from an
auto dealership. The retail installment contract failed to disclose the
loan fees as finance charges. Because of this, the Supreme Court
held that the auto dealer violated statutory disclosure provisions for
retail installment contracts under N.D.C.C. Chapter 51-13. Because
of this violation, the auto retail seller cannot be deemed a regulated
lender under N.D.C.C. § 47-14-09 and is subject to state usury laws.
Accordingly, the Supreme Court reversed the district court’s
conclusion the dealer did not violate the disclosure requirements of
the Retail Installment Sales Act. The Supreme Court reversed the
district court judgment and remanded the case back to the district
court to address whether the dealer willfully violated the disclosure
requirements of N.D.C.C. Chapter 51-13 and any remedies
available to the purchasers for non-compliance with those disclosure
requirements.
City of Fargo v. Nikle, 2019 ND 79.
Filed 3-13-19.
The defendant appealed from a criminal judgment after the district
court found him guilty of actual physical control of a vehicle while
under the influence of intoxicating liquor or controlled substance, in
violation of a Fargo, N.D., city ordinance.
Before the scheduled jury trial, the defendant requested the
district court include a jury instruction on the affirmative defense
of necessity. The district court denied the request to include the
necessity instruction, finding it was not currently supported by
North Dakota law. Following the denial, the defendant conditionally
waived his right to a jury trial, expressly reserving his right to appeal
the court’s denial of his requested jury instruction on necessity, and
proceeded to a bench trial.
Following his judgment of conviction, the defendant appealed. The
Supreme Court rejected the defendant’s arguments for two basic
reasons. First, he failed to present sufficient evidence on all elements
of his requested necessity instruction. Second, the Supreme Court
noted the broad notion of necessity. While it may represent a public
policy decision not to punish an individual despite proof of a crime,
it is not a justification authorized under N.D.C.C. Chapter 12.1-05
and has not yet been recognized by the Supreme Court. The district
court’s criminal judgment was affirmed.
The patience, personality and persistence the
process demands. The empathy litigants deserve.
A uniquely qualified neutral.
WICK CORWIN
[email protected] 701-541-0965
www.corwinmediation.com
SPRING 2019 27