State v. Goulet, 1999 ND 80 Judges are not expected to divine a party's true intentions in mislabeled and misleading documents. Parties have the primary duty to bring to the court's attention the proper rules of law applicable to a case. N.D.R.Crim.P. 16(f)(1) does not require the prosecution to furnish to the defendant the names of its rebuttal witnesses. The right of surrebuttal is discretionary with the trial court. State v. McKing, 1999 ND 81 Theft is not a lesser included offense of robbery.
April 27, 1999
Clark v. State, 1999 ND 78 An application for post-conviction relief will be dismissed for misuse of process (1) if the defendant has inexcusably failed to raise an issue in a proceeding leading to judgment of conviction; (2) if the defendant inexcusably failed to pursue on direct appeal an issue raised and litigated in a proceeding leading to judgment of conviction; or (3) if the defendant inexcusably failed to raise an issue in an initial post-conviction application. Clarys v. Ford Motor Company, 1999 ND 72 There is no right to sue in tort when a defective product damages only itself--not persons or other property. This economic loss doctrine applies to both consumer and business plaintiffs. Hill v. Weber, 1999 ND 74 If the child's present environment may endanger the child's physical or emotional health or impair the child's emotional development, there is as a matter of law a material change in circumstances that warrants a change of custody. Luna v. Luna, 1999 ND 79 Under the Parental Kidnapping Prevention Act, a North Dakota court retains exclusive continuing jurisdiction to modify its custody order, when the child still lives in North Dakota, or when one of the parties still lives in North Dakota and there is a significant connection between the child and the state. A North Dakota court will decline to exercise its jurisdiction to modify custody, when the state is not a convenient forum. State ex rel. Melling v. Ness, 1999 ND 73 A move to another state which benefits the health and well-being of a custodial parent is beneficial to the parent's child, and is in the child's best interests. Evidence of a firm job offer in another state is relevant in assessing economic advantages for a custodial parent's move to that state. If a trial court grants a custodial parent's motion to remove a child from the state, evidence related to the proposed move cannot support a competing motion for change of custody. State ex rel. Sprynczynatyk v. Mills, 1999 ND 75 The ordinary high watermark of a river must be determined based upon the current condition of the river, even if the current condition has been affected by artificial changes. State v. DeCoteau, 1999 ND 77 The exigent circumstances exception to the warrant requirement exists only when there is probable cause and an emergency situation requiring swift action by police to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. State v. Evans, 1999 ND 70 A prosecutor's unobjected to jury argument is not reversible unless it is obvious error affecting a defendant's substantial rights. During closing argument, counsel cannot rely or comment on facts not in evidence. A prosecutor's statements of fact to the jury which are not warranted by the evidence are improper and are presumed to be prejudicial unless harmless in themselves. State v. Klein, 1999 ND 76 A photograph of a sexual abuse victim is admissible to permit the jury to see what the victim looked like at the time of the offense. Under appropriate circumstances, narrow questions about other sexual offenses at a location may be permissible for impeachment. Vass v. Sissell, 1999 ND 71 Order granting petition for disorderly conduct restraining order summarily affirmed under N.D.R.App.P. 35.1(a)(4).
Fox v. Fox, 1999 ND 68 Future disability payments are not marital property subject to equitable distribution, but are income which the court may consider to determine the ultimate economic circumstances of the parties in a divorce. Trusts are includable as marital property subject to equitable distribution. In distributing marital property, a court should try to disentangle the parties' financial affairs to reduce further conflict, litigation, and rancor between them. A spouse is not required to deplete a property distribution in order to live. Stalcup v. Job Service, 1999 ND 67 Under N.D.C.C. 52-06-20, inadmissible evidence, including hearsay, may be considered in an unemployment compensation hearing. A claimant's due process rights are not violated where an agency considers hearsay evidence provided there is a right to cross-examine and subpoena. Where a claimant fails to exercise these rights, they are waived.
April 9, 1999
Hoffman v. N.D. Workers Compensation Bureau, 1999 ND 66 In determining whether a vocational rehabilitation training program will return an injured worker to substantial gainful employment under N.D.C.C. 65-05.1-01(3), the validity of the program must be assessed based on the information the Bureau had before it at the time the Bureau selected the program. A claimant has "good cause" under N.D.C.C. 65-05.1-04(6) for not attending an approved rehabilitation program if the claimant has a reason that would cause a reasonably prudent person to refuse to attend the rehabilitation program under the same or similar circumstances. A claimant had "good cause" to not attend the approved rehabilitation program where the program would have required the claimant to maintain two households and the Bureau wrongfully denied the claimant a second domicile allowance. Jorgenson v. Ratajczak, 1999 ND 65 If a party asks Supreme Court for attorney fees incurred for appeal of divorce decree and is advised to ask trial court for those fees, the action is pending under N.D.C.C. 14-05-23 and the party has a reasonable time to request those fees. Under N.D.C.C. 14-05-23, a trial court in a pending divorce proceeding may award appellate attorney fees based upon the parties' needs and ability to pay.
April 6, 1999
Anderson v. Anderson, 1999 ND 57 N.D.C.C. 39-06-09 imputes the negligence of a minor permit driver to an injured passenger when that passenger is the parent who signed the minor driver's permit application. Hawkinson v. Hawkinson, 1999 ND 58 The fourth factor in Stout v. Stout is rephrased as: "The potential negative impact on the relationship between the noncustodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent's relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation." Reeves v. Chepulis, 1999 ND 63 Evidence of domestic violence which clearly does not trigger the statutory presumption should be considered as one of the best interest factors under N.D.C.C. 14-09-06.2. Primary caretaker status, a relevant factor to be considered under the best interest statute, generally applies to the parent who has provided the child with daily nurturance, care and support. Silvesan v. State, 1999 ND 62 N.D.C.C. 29-32.1-12 authorizes denial of an application for post-conviction relief on the ground of res judicata or misuse of process. State v. Burckhard, 1999 ND 64 Under the law of the case doctrine, legal questions decided by an appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain the same. The mandate rule, a more specific application of law of the case, requires the trial court to follow pronouncements of an appellate court on legal issues in subsequent proceedings of the case and to carry the appellate court's mandate into effect according to its terms. State v. Egan, 1999 ND 59 In a prosecution for driving under suspension, a driver who fails to notify the Department of Transportation of a change of address within ten days of moving may claim lack of receipt of notice of an opportunity for hearing on a license suspension when the notice is served within those ten days. State v. Jones, 1999 ND 61 When a defendant is charged in a single information with two counts of delivery of a controlled substance for two separate incidents, the mandatory minimum sentence for a second offense under N.D.C.C. 19-03.1-23(1)(a)(2) applies to the second count. State v. Tester, 1999 ND 60 There must be a nexus between the contraband sought and the place to be searched. Entrapment is a question of fact for the jury, and is not appropriately raised in a motion to dismiss.