Spring 2019 Gavel Spring Gavel 2019 - Page 27

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 wick@corwinmediation.com 701-541-0965 www.corwinmediation.com SPRING 2019 27