In the Interest of R.N. , 1997 ND 246 - Civil No. 970375 An order under NDCC 25-03.1-18.1 must be supported by evidence that forced medication is clinically appropriate and necessary. Allegations in an involuntary commitment petition must be proven and cannot, by themselves, serve as proof that a mentally ill person requires treatment.
December 23, 1997
Estate of Schmidt , 1997 ND 244 - Civil No. 970183 The dismissal of an appeal makes the judgment final and res judicata. When construing a trust instrument, our primary objective is to ascertain the settlor's intent. When a trust instrument is unambiguous, the settlor's intent is ascertained from the language of the trust document itself.
Struksnes v. Kevin's Plumbing & Heating , 1997 ND 245 - Civil No. 970203 A person is presumed to act for himself, rather than as the agent of another, and a party alleging the existence of an agency relationship must establish it by clear and convincing evidence. A lease providing the lessee is to keep the premises in good repair and providing the lessee has no authority to create a lien on the premises would not cause a third person to believe the lessee had authority to act for and on behalf of the lessor.
December 19, 1997
Foster v. State , 1997 ND 239 - Civil No. 970284 Dismissal of application for post-conviction relief summarily affirmed under N.D.R.App.P. 35.1(a)(6), (7).
Hausauer v. N.D. Workers Compensation Bureau, et al. , 1997 ND 243 - Civil No. 970128 The Bureau properly dismisses a workers' compensation claim where claimant willfully made material false statements in connection with his claim.
State v. Blackhoop , 1997 ND 242 - Criminal No. 970214 Appellant's conviction on three counts of violating N.D.C.C. 19-03.1-23, delivery of controlled substances, is affirmed under Rule 35.1(a)(3) and (4), N.D.R.App.P.
State v. Kitchen , 1997 ND 241 - Criminal No. 970085 When the entryway to a home is impliedly open to use by the public, the residents have no reasonable expectation of privacy in the entryway.
Wolf v. Estate of Seright , 1997 ND 240 - Civil No. 970106 A trial court's failure to instruct a jury on a motorist's statutory duty to signal an intention to turn not less than 100 feet before turning was not reversible error when the jury was instructed on a motorist's duty to use an appropriate turn signal and the plaintiff was not precluded from arguing the motorist failed to give an appropriate signal. A trial court did not abuse its discretion in refusing to exclude expert testimony that a party claims was not disclosed during discovery.
December 10, 1997
Albrecht v. Walter , 1997 ND 238 - Civil No. 970082 Generally, guarantors who pay more than their proportionate share of an obligation are entitled to contribution from other guarantors who are jointly and severally liable for the contribution. A paying guarantor taking an assignment may not recover from his coguarantors more than their proportionate shares of the amount paid. A coguarantor may purchase an assignment of a note and guaranties, but the parties' initial relationship as coguarantors operates as a matter of law to restrict the recovery and governs the rights of the coguarantors.
December 9, 1997
Buckingham v. Weston Village , 1997 ND 237 - Civil No. 970114 Amendments to a condominium association's bylaws are limited by the "reasonableness" test, and may not be unreasonable, arbitrary, capricious, or discriminatory.
December 8, 1997
Disciplinary Board v. Raymond , 1997 ND 236 - Civil No. 970342 Lawyer's certificate of admission to practice law in North Dakota suspended for six months.
State v. Johnson , 1997 ND 235 - Criminal No. 970242 Defendant's second attempt to correct sentence on same contention raised earlier is misuse of process.
December 5, 1997
Disciplinary Board v. Fisher , 1997 ND 234 - Civil No. 970343 Lawyer suspended from the practice of law for 24 months. The suspension is stayed on the condition lawyer commit no further acts of theft.
December 2, 1997
Baer v. Director, North Dakota Dep't of Transp. , 1997 ND 222 - Civil No. 970174 Arresting police officer has probable cause to arrest for driving under the influence when driving was erratic almost causing an accident, and driver had difficultly handling his license, exited vehicle with a stagger, had strong odor of alcohol, "glossy" eyes, and a "distinct stare."
City of Fargo v. Rockwell , 1997 ND 217 - Criminal No. 970171 DUI conviction summarily affirmed under NDRAppP 35.1(a) (3) & (4).
Cridland v. N.D. Workers Compensation Bureau , 1997 ND 223 - Civil No. 970206 In the absence of new evidence or a change in medical condition, a Bureau order awarding benefits for a work injury, entered with knowledge of a noncompensable injury and after a formal adjudicative hearing, is res judicata and precludes the Bureau from relitigating the effect of the noncompensable injury on a work injury.
Gerard v. State , 1997 ND 218 - Civil No. 970135 Application for postconviction relief affirmed under N.D.R.App.P. 35.1(a)(2).
Gowin v. Trangsrud , 1997 ND 226 - Civil No. 970065 A trial court does not err in refusing to give a requested instruction which misstates the law. If a trial court errs in refusing to give a requested instruction, the error is harmless if the result would have been the same if the alleged error had not occurred.
Hanson v. Cincinnati Life Ins. Co. , 1997 ND 230 - Civil No. 970247 In an action for death benefits under a term life insurance policy, summary judgment is proper when reasonable persons could not disagree the policy lapsed and the insurer was not precluded from treating the policy as lapsed.
Krabseth v. Moore , 1997 ND 224 - Civil No. 970226 To avoid revocation of driving privileges for refusing a chemical test, a DUI arrestee must plead guilty and file an affidavit with the Department of Transportation within 25 days after the arresting officer issues a temporary permit. Where the arrestee pleads guilty but does not file an affidavit within 25 days, the district court abuses its discretion in issuing a writ of mandamus directing the Department to suspend driving privileges for 91 days on the DUI conviction in lieu of a one-year revocation for refusing to test.
Larson v. Moore, Director, N.D.D.O.T. , 1997 ND 227 - Civil No. 970213 An analytical report must be made and forwarded for every test sample obtained by an officer.
Miller v. Medcenter One , 1997 ND 231 - Civil No. 970077 The district court does not err in granting motion for summary judgment when plaintiff fails to prove prima facie case of unlawful discrimination under the North Dakota Human Rights Act, Ch. 14-02.4, N.D.C.C..
Otterson v. Otterson , 1997 ND 232 - Civil No. 970096 When an unemployed child support obligor claims she is disabled, income must be imputed to her under N.D. Admin. Code 75-02-04.1-07(3) unless she proves her disability precludes her from earning at least minimum wage. A nonrecurring lump sum personal injury settlement is included in an obligor's income for calculating child support. The value of in-kind income provided by an obligor's spouse for ordinary living expenses is not income to the obligor for calculating child support.
Pavlicek v. Allison , 1997 ND 219 - Civil No. 970235 Award of attorney fees on a child support determination affirmed under N.D.R.App.P. 35.1(a)(4).
Raboin v. N.D. Workers Compensation Bureau , 1997 ND 221 - Civil No. 970105 To impose personal liability on a corporate officer for an employer's failure to pay workers compensation premiums under N.D.C.C. 65-04-26.1, the officer must have supervisory control over the payment of premiums when payment is required.
State v. Albaugh , 1997 ND 229 - Criminal No. 970074 The State has a compelling interest in managing and preserving the wildlife within its borders. An appropriate game-and-fish checkpoint does not violate constitutional proscriptions against unreasonable seizures. The ratio of violations discovered to total vehicles stopped is but one measure of a checkpoint's effectiveness, and the State's failure to tally the total number of vehicles stopped does not by itself render the checkpoint unconstitutional. A game warden who observes open cans of beer in a vehicle stopped at a game-and-fish checkpoint has statutory authority to momentarily detain the driver until a nearby police officer on the checkpoint "team" can investigate further.
State v. Feigert , 1997 ND 216 - Criminal No. 970199 Conviction of issuing check without account summarily affirmed under N.D.R.App.P. 35.1.
State v. Harmon , 1997 ND 233 - Criminal No. 960206 Untimely post-conviction appeal is dismissed when defendant fails to request extension of time to file the notice of appeal from the trial court. Trial court does not abuse its discretion in denying substitute counsel where trial court determines comments by defendant's attorney do not present an irreconcilable conflict. Defendant is not denied right to counsel where after having substitute counsel denied, defendant continues to request substitute counsel and refuses to cooperate with appointed counsel, the trial court determines defendant had elected to proceed pro se, and the record reflects defendant's actions are knowing and intelligent.
State v. Magnuson , 1997 ND 228 - Criminal No. 960378 If a defendant's competency to plead guilty is not contested, a competency hearing is not necessary and the defendant's voluntary guilty plea waives his right to assert the defense of lack of criminal responsibility for the crime. A trial court does not abuse its discretion in refusing to accept the State's sentencing recommendation and imposing a harsher sentence on the defendant within the permissible sentencing range.
Withey v. Hager , 1997 ND 225 - Civil No. 970160 A parent, bringing a motion to modify a child support obligation within two months after entry of an amended judgment continuing support at a rate set more than one year earlier, must demonstrate a material change of circumstance. A trial court's modification of the parties' obligation for the children's medical expenses must be more than a year from the previous child support judgment, or requires a material change of circumstances.