Sherman v. N.D. Workers Compensation Bureau , 1998 ND 97 - Civil No. 970393 When the district court fails to follow recent controlling precedent and does not undertake the legislatively mandated review under N.D.C.C. ch. 65-10 and ch. 28-32, Supreme Court may reverse and remand to the district court for consideration on the merits.
April 28, 1998
Campbell Farms v. Wald , 1998 ND 85 - Civil No. 970220 Under NDCC 41-02-71, questions of nonconformity with a contract for the sale of goods, substantial impairment of value, and timely notice of revocation are questions of fact. A contract need not be ambiguous for the admission of evidence of usage of trade.
Disciplinary Board v. Lee , 1998 ND 90 - No. 980075 Attorney suspended for six months for violation of Rules of Professional Conduct.
Gibson v. State , 1998 ND 89 - Civil No. 970386 A court order denying a request for transcripts is interlocutory and nonappealable.
Gregory v. N.D. Workers Compensation Bureau , 1998 ND 94 - Civil No. 970243 Under the 1995 version of NDCC 65-02-27, a worker who requests assistance from the Workers' Adviser Program is deemed to have requested an administrative hearing. A request for a hearing constitutes a petition for reconsideration under NDCC 65-01-14(4). An appeal is not moot if the court is able to give effective relief. The 1995 version of NDCC 65-05-09.3(2), that canceled workers compensation permanent total disability benefits when the injured worker became eligible for social security retirement benefits, did not apply to a worker who was already receiving those benefits before the statute took effect.
Holzer v. Jochim , 1998 ND 82 - Civil No. 970355 A judgment determining that a partnership had been dissolved and awarding a partner payment for his labor contributed to the partnership is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Hoyem v. N.D. Workers Compensation Bureau , 1998 ND 86 - Civil No. 970274 Issues not raised before an administrative agency will not be considered for the first time on appeal. Bureau's decision a claimant was not entitled to an impairment evaluation and rating for chronic pain and chronic pain syndrome was supported by a preponderance of the evidence.
In Interest of J.S. , 1998 ND 92 - Civil No. 980097 Under N.D.R.App.P. 4(a), a trial court may extend the time for filing the notice of appeal in an action under N.D.C.C. ch. 25-03.1. A trial court may order continuing treatment based on patient's past behavior, when coupled with current and uncontroverted expert opinion patient's behavior would revert if prescribed treatment did not continue.
Moch v. Moch , 1998 ND 95 - Civil No. 970396 Law of case doctrine precludes an issue not cross-appealed or argued at the first appeal from being raised on a second appeal after remand. On remand, a trial court does not abuse its discretion by only rectifying the defects contained in the appellate court's mandate and otherwise proceeding in a manner consistent with the appellate court's opinion.
Murchison v. State , 1998 ND 96 - Civil No. 970390 Issues previously raised in a direct appeal or in an application for post-conviction relief will not be considered again in a subsequent application for post-conviction relief. Issues which should have been raised in direct appeal, but were not, will not be considered in an application for post-conviction relief. Issues not raised before a trial court cannot be raised for the first time on appeal. Arguments not briefed by appellant are deemed abandoned.
Myers-Weigel Funeral Home v. Job Service N. Dak. , 1998 ND 87 - Civil No. 970331 Substitute funeral directors are employees for purposes of job insurance coverage because the funeral home has right to control the performance of their job.
Nord v. Herrman , 1998 ND 91 - Civil No. 970161 Lake shore property dispute was not rendered moot by the rising waters of Devils Lake because the issues were capable of repetition, yet evading review. When the level of Devils Lake recedes below the meander line, the owners of lakeside property are entitled to an allocation of the new shoreline in proportion to each owner's share of the original shoreline. Attorney fees are not recoverable in an action unless expressly authorized by statute.
Sprunk v. N.D. Workers Compensation Bureau , 1998 ND 93 - Civil No. 970296 An injured employee's doctor must report to the Workers Compensation Bureau when the employee reached maximum medical improvement, but the Bureau is not bound by that opinion. An issue is not ripe for review if it depends on future contingencies which, although they might occur, necessarily may not, thus making addressing the question premature.
State v. Black Cloud , 1998 ND 81 - Criminal No. 970325 DUI conviction summarily affirmed under N.D.R.App.P. 35.1 (a)(3) and (7).
State v. Black Cloud , 1998 ND 84 - Criminal No. 970322 Criminal Judgment of conviction for Unlawful Entry into a Vehicle summarily affirmed under N.D.R.App.P. 35.1(a)(3), (7).
State v. Novak , 1998 ND 80 - Criminal No. 980013 Trial court's denial of motion for a new trial summarily affirmed under NDRAppP 35.1.
State v. Poitra , 1998 ND 88 - Criminal No. 970285 A criminal defendant's waiver of the right to counsel must be knowing and intelligent.
Young v. Young , 1998 ND 83 - Civil No. 970251 In making an equitable division of the marital estate the trial court must consider all property, regardless of its source and regardless of whether it was premarital property or property accumulated during the marriage. The property division need not be equal to be equitable, but the trial court must explain any substantial disparity. The trial court's findings do not adequately explain the substantial disparity in property division resulting, in part, from the court's award of premarital property to each spouse bringing that property into the marriage.
April 13, 1998
City of Bismarck v. Fischer , 1998 ND 79 - Criminal No. 970368 DUI conviction summarily affirmed under N.D.R.App.P. 35.1 (a)(4).
April 8, 1998
Berg v. Ullman , 1998 ND 74 - Civil No. 970309 A child support obligor is required by N.D. Admin. Code 75-02-04.1-02(7) to provide documentation of current income. Under N.D. Admin. Code 75-02-04.1-07(3), income must be imputed to an underemployed obligor. Although there are three methods of imputation, the baseline or minimum imputation is 167 times the federal minimum wage. A child support order must include a statement of the obligor's net income and how that income was determined.
City of Fargo v. Bakkerud , 1998 ND 77 - Civil No. 970297 When a DUI arrestee requests an independent blood test, the arresting officer must afford the arrestee a reasonable opportunity to secure an independent test and must not prevent or hinder the arrestee's timely reasonable attempts to obtain a test. Although the arresting officer told the arrestee independent blood tests were quite expensive, the arrestee was not deprived of his right to take an independent test, especially where the officers provided the arrestee with a telephone and phone book but the arrestee made no attempt to arrange for a test.
Nastrom v. Nastrom , 1998 ND 75 - Civil No. 970260 Under NDRAppP 4(a), a 30-day extension of time to file an appeal may be granted at the discretion of the trial court upon a showing of excusable neglect. Evidence of unique or extraordinary circumstances is needed to excuse a failure to file a timely notice of appeal. The time for filing an appeal is jurisdictional and, without jurisdiction, this court must dismiss an appeal.
State v. Wruck , 1998 ND 73 - Criminal No. 970366 Criminal judgment for possession of marijuana with intent to deliver summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).
State v. Wicks , 1998 ND 76 - Criminal No. 970259 Criminal defendant is denied right to counsel when appointed attorney withdraws on the day of trial because of a conflict of interest created by client and client is required to proceed pro se, record reflects "forced waiver" was not knowing and intelligent. Appointed counsel may continue representation of client despite client's filing of disciplinary complaint.
The Perry Center v. Heitkamp , 1998 ND 78 - Civil No. 970218 A trial court's discretion to grant a N.D.R.Civ.P. 56(f) continuance is limited when a summary judgment motion is based on governmental immunity. A court-appointed receiver is entitled to absolute derivative judicial immunity when acting in the scope of his authority and in accordance with court order. The Director of the Department of Human Services is entitled to discretionary act immunity under N.D.C.C. 32-12.2-02(3)(b) for nonministerial conduct involving the licensure and regulation of maternity homes. The Attorney General and an Assistant Attorney General are entitled to absolute prosecutorial immunity for initiating and bringing a civil consumer protection action. State officials sued in their individual capacities under 42 U.S.C. 1983 are entitled to qualified immunity from liability if the challenged actions are ones a reasonable official could have believed were lawful.
April 1, 1998
State v. Bender , 1998 ND 72 - Criminal No. 970014 When a defendant is sentenced to probation following a term of imprisonment, the court may order the defendant to participate in treatment or counseling programs while in prison as a prior condition of probation. When the defendant violates the terms of his probation while still incarcerated, the court may revoke probation at that time and need not wait until the defendant is actually released on probation. Where an application for post-conviction relief alleging ineffective assistance of counsel was not patently frivolous, the trial court erred in summarily denying the application without a responsive pleading or motion by the State, and without affording the applicant an opportunity to provide evidentiary support for his allegations.