Estate of Robinson, 2000 ND 90 A presumption of undue influence arises upon the finding a confidential relationship existed between the decedent and a beneficiary; the beneficiary bears the burden of rebutting the presumption. Whether undue influence existed is a question of fact, and trial court's findings will not be set aside unless clearly erroneous.
April 27, 2000
Matrix Properties Corp. v. TAG Investments, 2000 ND 88 Where the exercise of an option to purchase does not provide for payment of the purchase price coincident with the optionee's exercise of the option, payment of the purchase price is merely an incident of performance of the bilateral contract created by exercise of the option. Exercise of an option must be unconditional. A contract with a provision allowing one party to rescind if certain requirements are not to their "satisfaction" is not conditional because an objective standard is employed in interpreting it. Webster v. Regan, 2000 ND 89 Interpretation of ambiguities in a grantee's favor is a rule of construction of last resort, applied when all other means of ascertaining the parties' intent have failed.
April 25, 2000
Baier v. N.D. Workers Compensation Bureau, 2000 ND 78 When an agency issues a final order after a formal hearing, administrative res judicata bars the agency from raising in a subsequent proceeding issues which could have been raised in the first hearing. Bank Center First v. Kostelecky, 2000 ND 84 The trial court retains jurisdiction over a judgment debtor after the judgment is entered and has the authority to compel the debtor to comply with post-judgment discovery procedures. Buchmann v. N.D. Workers Compensation Bureau, 2000 ND 79 Due process under the state and federal constitutions requires the Workers Compensation Bureau to give a claimant pre-termination notice of its intent to terminate disability benefits, a summary of the evidence supporting termination, and an opportunity to respond. The Workers Compensation Bureau may weigh the evidence before it, although it may not pick and choose in an unreasonable manner. Burke v. N.D. Department of Corrections & Rehabilitation, 2000 ND 85 A prison regulation which infringes on an inmate's rights will not be struck down if it is reasonably related to legitimate penological interests. A prison inmate cannot recover either damages or equitable relief against the State under state antitrust law. Disciplinary Board v. McDonald, 2000 ND 87 Lawyer suspended for six months and a day for making a statement of fact and offering evidence which he knew was false to a court, in violation of N.D.R. Prof. Conduct 3.3(a). A party waives the right to a judgment as a matter of law if the motion is made at the close of the opponent's case and the moving party then introduces evidence in its own behalf. The Disciplinary Board, through its hearing bodies, may take judicial notice of state laws even if the law is not formally submitted and received in evidence or requested to be officially noticed. Expiration of a time period in disciplinary proceedings does not alone establish a due process violation necessitating dismissal of charges. Kjelland v. Kjelland, 2000 ND 86 A guardian ad litem's opinion and a party's commitment to parenting are appropriately considered in determining custody. A trial court's custody determination will not be overturned unless it is clearly erroneous. Lauer v. Lauer, 2000 ND 82 An obligor need not show a material change in circumstances if the motion to modify child support is brought more than one year after entry of the support order. Under the child support guidelines, income may not be imputed based on underemployment absent adequate evidence of the obligor's gross income from earnings and of the prevailing amounts earned in the community by persons with similar work history and occupational qualifications. In a contempt proceeding, the trial court may award attorney fees to the complainant. Lewis v. N.D. Workers Compensation Bureau, 2000 ND 77 A motion for relief from judgment under N.D.R.Civ.P. 60(b) does not apply to an administrative appeal to district court. Olvera v. Johnson, 2000 ND 80 Under 1913 N.D. Compiled Laws ch. 30, foreclosure by advertisement of a 1915 mortgage foreclosed mineral interests severed from the surface after the mortgage was entered. State v. Keyes, 2000 ND 83 A defendant's constitutional right to confront a witness is satisfied when the defendant has had an opportunity for an effective cross-examination of the witness. A comment on the defendant's silence at trial violates the defendant's right against self- incrimination. State v. Reamann, 2000 ND 81 Without a record of an offer of proof, a party cannot show an abuse of discretion. State v. Serr, 2000 ND 76 Convictions for possession of controlled substances with the intent to deliver summarily affirmed under N.D.R.App.P. 35.1(a)(3).
April 10, 2000
Ash v. Traynor, 2000 ND 75 N.D.C.C. 65-02-08 prohibits an attorney from receiving double fees from a client and the Bureau for legal services rendered to the client in proceedings before the Bureau. The statute does not prohibit a client from entering a fee agreement with the attorney and then, upon prevailing in the case, seeking reimbursement from the Bureau, in the amount of the statutory fees allowed under the statute.
April 5, 2000
Christl v. Swanson, 2000 ND 74 Under N.D. Admin. Code 75-02-04.1-09(4), an asset transaction may be presumed to have been made for the purpose of reducing a child support obligor's income available for the payment of child support if all three specified factors exist. Emter v. Emter, 2000 ND 70 The trial court's property division and spousal support award upon remand from prior appeal was summarily affirmed under N.D.R.App.P. 35.1(a)(2). Follman v. Upper Valley Special Education Unit, 2000 ND 72 An affidavit containing vague, conclusory allegations is not sufficient to raise a genuine factual issue. A party's decision to submit only certain evidence at a stage in proceedings generally cannot later constitute exceptional circumstances justifying relief from a judgment. Friedt v. Hettinger County, 2000 ND 73 Summary judgment summarily affirmed under N.D.R.App.P. 35.1(a)(6). Mikkelson v. N.D. Workers Compensation Bureau, 2000 ND 67 A preexisting condition need not be active at the time of a compensable work injury to invoke the 1997 version of the aggravation statute. To establish entitlement to disability benefits, the claimant must ensure that the claimant's doctor verify disability in a filed report containing the information required by statute. Schaan v. Magic City Beverage Co., 2000 ND 71 A motion for a new trial may be joined with a motion for judgment as a matter of law, but the joined motions must be filed within the 15 days allowed for moving for judgment as a matter of law under N.D.R.Civ.P. 50. A motion stating that a party will order a transcript and present grounds at a later date is insufficiently particular. A trial court may extend the time for filing a motion for a new trial when a party shows good cause and the request for an extension is made within the 60 days provided for a new trial motion under N.D.R.Civ.P. 59(c)(2). A trial court abuses its discretion by granting an extension of time to file an appeal based on an unexplained delay in ordering a trial transcript. State v. Dobson, 2000 ND 66 D.U.I. and D.U.S. convictions summarily affirmed under N.D.R.App.P. 35.1(a)(3). State v. Johnson, 2000 ND 69 Gross-sexual-imposition conviction summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4). State v. Soum, 2000 ND 65 Judgment of conviction for driving while under suspension is summarily affirmed under N.D.R.App.P. 35.1(a)(7). State v. Sommer, 2000 ND 68 D.U.I. conviction summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).