Estate of Zimmerman, 2001 ND 155 Under the probate law in effect before January 1996, a surviving spouse's property is includable in the decedent's augmented estate to the extent the property was derived from the decedent without full consideration in money or money's worth. Property distributed to a surviving spouse in a prior divorce from the decedent is derived from the decedent without full consideration in money or money's worth.
August 29, 2001
Doan v. City of Bismarck, 2001 ND 152 Summary judgment rarely should be granted in negligence cases because issues involving reasonableness standards generally are inappropriate for summary disposition. A landowner owes a duty to lawful entrants to maintain property in a reasonably safe condition in view of all the circumstances and owes a duty to an injured party if the landowner has control over the property where the injury occurred. Under the doctrine of retained control, an employer who hires an independent contractor is liable for harm to others for whom the employer owes a duty to exercise reasonable care, if the employer retains control of an part of the work and causes harm by failing to exercise such control with reasonable care. In negligence actions, customs or practices do not necessarily establish the standard of care, but may be evidence of whether conduct meets the general standard of reasonable care under the circumstances. Eggl v. Letvin Equipment Co., 2001 ND 144 A trial court's determinations on questions of breach of warranty are treated as findings of fact subject to the clearly erroneous standard of N.D.R.Civ.P. 52(a). Whether machinery is reasonably fit for the purpose for which it was purchased, and whether a contract of purchase has been rescinded within a reasonable time or not, are questions of fact. Questions of nonconformity with a contract, substantial impairment of value, and timely notice of revocation are questions of fact. The time for discovering a breach of warranty and what is a reasonable time for revocation of acceptance are fact questions. A buyer's right of revocation is not conditioned upon whether it is the seller or the manufacturer that is responsible for the nonconformity. Farmers Alliance Mutual Ins. Co. v. Hulstrand Construction, Inc., 2001 ND 145 Absent concerted action, there is no third-party claim for contribution among tortfeasors under North Dakota law. When the parties to a contract agree to modify or alter the terms of their original contract, the new agreement ordinarily must be supported by new or additional consideration. When the parties to a contract sign a subsequent agreement which is intended to merely clarify or explain the terms of the original contract, no new or additional consideration is necessary. Heinz v. Heinz, 2001 ND 147 A lengthy marriage supports an equal division of all marital assets. Spousal support is appropriate for a disadvantaged spouse who has foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse's increased earning capacity. Spousal support payments must be included in computing monthly net income for child support purposes. Higgins v. Trauger, 2001 ND 149 When a failure to timely redeem from a tax sale is attributable in part to the neglect of the redemptioner, and not wholly to a mistake made by the county auditor, equitable principles do not apply to extend the redemption period. A person who owes a duty to pay taxes on property and who fails to pay the taxes, cannot in collusion with others purchase tax sale certificates for the property to strengthen the person's title. Interest of H.G., 2001 ND 142 A district court's involuntary commitment order is reviewed under a more probing clearly erroneous standard. Even though mentally ill, engaging in imprudent business practices is not enough to find a respondent presents a substantial likelihood of dangerousness to property and is, therefore, a person requiring treatment. Interest of N.H., 2001 ND 143 Prognostic evidence is a basis for reasonable predictions about future behavior when determining whether a child's deprivation is likely to continue or will not be remedied. Prognostic evidence includes reports and opinions of professionals. Lack of parental cooperation with social service agencies is insufficient to establish deprivation but is pertinent to whether deprivation will continue. McKenzie Co. Social Service Bd. v. C.G., 2001 ND 151 A judgment entered without personal or subject matter jurisdiction is void. Determining the parentage of a child of Indian tribal members is intimately connected with the right of reservation Indians to make their own laws and be ruled by them. Affirmative relief is not available under N.D.R.Civ.P. 60(b)(iv). Rose v. United Equitable Ins. Co., 2001 ND 154 A fraud action is not barred by the passage of time until six years after discovery of the facts constituting the fraud. The purpose of a motion for dismissal for failure to state a claim upon which relief can be granted is to test the legal sufficiency of the statement of the claim presented in the complaint. When a motion for dismissal for failure to state a claim upon which relief can be granted is made, the complaint is construed in the light most favorable to the plaintiff, and the allegations of the complaint are taken as true. A complaint should not be dismissed for failure to state a claim upon which relief can be granted unless it appears beyond doubt the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. State v. Bouck, 2001 ND 153 When the law prescribes a place of imprisonment to which a convicted defendant can be sentenced, the court cannot direct a different place of incarceration, and, if it does, the sentence is void and the defendant is entitled to resentencing. State v. Shafer-Imhoff, 2001 ND 146 Application of N.D.C.C. 1-02-17 to eliminate the punishment of imprisonment for a criminal statute that was repealed after the criminal act was committed but before conviction, is not an invalid pardon. A trial court is not required to instruct the jury in the exact language sought by a party if the court's instructions adequately and correctly inform the jury of the applicable law. When a statute is clear and unambiguous on its face, we will not disregard the letter of the statute under the pretext of pursuing its spirit, because the legislative intent is presumed clear from the face of the statute. After the jury has advised the court of an impasse, the court may employ more than one N.D.R.Ct. 6.9 option without being advised again of an impasse. State v. Wiest, 2001 ND 150 Without an objection to testimony at trial, appellate review is limited to determining if its admission constituted obvious error affecting substantial rights. A trial court has broad discretion in evidentiary matters, and its decision to admit or exclude evidence will not be overturned unless the court abused its discretion. Stoppler v. Stoppler, 2001 ND 148 An award of custody is a finding of fact, which will not be disturbed on appeal unless clearly erroneous. A trial court's determination on visitation is treated as a finding of fact. To make an equitable distribution of marital property, the trial court must first determine the net worth of the parties' property. A court cannot consider property division and spousal support separately in a vacuum, but must examine those issues together.