Apache Corporation v. MDU Resources Group, 1999 ND 247 A third party may not enforce a contract unless intended by the contracting parties to be benefited by the contract. Unjust enrichment is an equitable doctrine, applied in the absence of an express or implied contract, to prevent a person from being unjustly enriched at the expense of another. Unjust enrichment requires the receipt of a benefit by the defendant from the plaintiff which would be inequitable to retain without paying for its value.
December 23, 1999
Aus v. Carter, 1999 ND 246 A motion for a new trial based on newly discovered evidence in a custody case is treated as a motion for a change of custody. In deciding whether to grant a motion for a new trial based on newly discovered evidence in a case involving a custodial parent's request to move, the court must consider the factors under Stout and its progeny.
December 22, 1999
Black v. Abex Corp., 1999 ND 236 Where the record contains no evidence to support an essential element of the plaintiff's claim, the defendant may move for summary judgment by merely pointing out the lack of evidence, and need not support its motion with affidavits or other "evidence." To prevail on a market share liability claim, the plaintiff must prove all of the products which may have caused the injury or illness posed equivalent risks of harm. "Alternative liability" is available only when all persons who may have caused the injury are before the court. Burley v. N.D. Dep't of Transportation, 1999 ND 232 A driver who failed to timely request a hearing may not compel one by mandamus. City of Minot v. Johnson, 1999 ND 241 An investigatory stop by a police officer must be supported by a reasonable and articulable suspicion a crime was or is about to be committed. Observation of an illegal activity constitutes probable cause to arrest, a higher standard than a reasonable suspicion. An area's reputation for criminal activity is an articulable fact on which an officer may rely, but standing alone is not a reasonable and articulable suspicion a crime was or is about to be committed. Cooke v. University of North Dakota, 1999 ND 238 The notice of claim requirement in N.D.C.C. 32-12.2-04(1) is consistent with the requirement a state university employee exhaust available administrative remedies prior to bringing suit. A party must present the requisite notice of claim and pursue available administrative remedies prior to bringing suit. Dozier v. Williams Co. Social Service Board, 1999 ND 240 Parties cannot complain about legal errors that redound to their benefit, rather than to their prejudice. If a person is receiving Temporary Assistance for Needy Families benefits, a signed contract is not a prerequisite to imposition of sanctions for failure to comply with program work requirements. Hjelden v. Job Service ND, 1999 ND 234 Job Service's determination of whether a claimant was fired or voluntarily quit is a factual finding which will not be overturned if a reasoning mind could have reasonably decided the finding was proved by the preponderance of the evidence. A claimant who voluntarily quits employment bears the burden of showing good cause attributable to the employer. Good cause does not exist where a claimant refuses to work with a co-worker because the co-worker is slow and inexperienced. Kaler v. Kraemer, 1999 ND 237 Whether a contract contains an ambiguity is a question of law, and once an ambiguity is determined to exist, a court may use extrinsic evidence to resolve it. Construing a contract against the drafter is an interpretation principle of last resort which should not be applied to frustrate clear intentions of the parties. A prevailing party in a breach of contract action is entitled to prejudgment interest where damages are certain or capable of being made certain by calculation. Parties to a contract are entitled to relief specified within that document where another party knowingly misrepresented facts material to the contract. Kouba v. N.D. Dep't of Transportation, 1999 ND 233 The Department of Transportation may not suspend an operator's license for failure to appear, if the operator appeared for the initial hearing. Meyers v. Meyers, 1999 ND 230 The court's divorce decree awarding custody of the minor children to the father is summarily affirmed under N.D.R.App.P. 35.1. Mid-Dakota Clinic v. Kolsrud, 1999 ND 244 A judgment creditor need not attempt an execution on a judgment debtor's property before seeking post-judgment discovery under Rule 69, N.D.R.Civ.P. Post-judgment discovery documents should be served under N.D.R.Civ.P. 5. A judgment debtor who ignores an order compelling answers to discovery and fails to appear at a show cause hearing may be arrested and brought before the court to answer. Schneider v. Schaaf, 1999 ND 235 Proof of actual damage proximately caused by a misrepresentation or nondisclosure is an essential element of a tort action for fraud and deceit. The concerted action provisions of N.D.C.C. 32-03.2-02 do not create an independent basis of tort liability, but deal only with the allocation of damages among those already at fault. Actual damages are an essential element of the tort of interference with prospective business advantage. Plaintiffs who allege conspiracy under federal civil rights statutes must plead the operative facts on which their claim is based; bald allegations of a conspiracy are insufficient. Seela v. Moore, 1999 ND 243 Probable cause to arrest a driver for D.U.I. requires some signs of physical or mental impairment by the driver and reason to believe the impairment is caused by alcohol. Fourth Amendment violations turn on an objective assessment of the officer's actions, in light of the facts and circumstances confronting the officer at the time, and not on the officer's actual state of mind or subjective beliefs. State v. Marshall, 1999 ND 242 Under N.D.C.C. 12.1-32-09(1) (1993), a "persistent offender" qualifies as a "dangerous special offender" eligible for imposition of an extended sentence. A judgment and commitment should accurately reflect the proceedings. Under N.D.R.Crim.P. 36, a court, at any time, may correct a clerical error in a judgment and commitment due to oversight. State v. Stibbe, 1999 ND 231 Criminal judgment and commitment and jury verdict of guilty summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (3). State v. Schumaier, 1999 ND 239 Self-defense may be asserted in appropriate cases by defendants charged with disorderly conduct. If there is evidence to support a self-defense claim, a defendant is entitled to an instruction on it, and the State must prove beyond a reasonable doubt the defendant did not act in self-defense. State v. Ulmer, 1999 ND 245 For purposes of imposing consecutive sentences, multiple offenses involve substantially different criminal objectives if they do not fall under one of the following three categories: 1) one offense is an included offense of the other; 2) one offense consists of a conspiracy, attempt, solicitation, or other form of preparation to commit, or facilitation of, the other; or 3) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.
December 6, 1999
Disciplinary Board v. Seaworth, 1999 ND 229 Lawyer reprimanded for failing to timely respond, on client's behalf, to sixteen letters from the opposing party in violation of N.D.R. Prof. Conduct 1.3. A client need not be prejudiced by his or her lawyer's failure to act with reasonable diligence and promptness for a violation of N.D.R. Prof. Conduct 1.3 to occur.
December 3, 1999
Dimond v. State Board of Higher Education, 1999 ND 228 Certification of an interlocutory appeal under N.D.R.Civ.P. 54(b) is justified only when the appeal falls within N.D.C.C. 28-27-02 and the trial court delineates unusual or compelling factors supporting a finding there is "no just reason for delay." A trial court lacks jurisdiction over a contract or tort claim against the state when the plaintiff fails to present notice of a claim to the proper state entity under N.D.C.C. 32-12-03 and 32-12.2- 04. Renner v. Mikkelson, 1999 ND 227 Trial court judgment awarding custody summarily affirmed under N.D.R.App.P. 35.1(a)(2).
December 2, 1999
Abolition of Judgeship, 1999 ND 226 Judgeship No. 5 in the Southwest Judicial District terminated effective Dec. 31, 2001.
December 1, 1999
Christianson v. Christianson, 1999 ND 206 Divorce judgment summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4). City of Valley City v. Stuart, 1999 ND 210 Judgment of conviction summarily affirmed under N.D.R.App.P. 35.1(a)(7). Including materials in an appendix that are not in the record violates N.D.R.App.P. 30(a), and may result in sanctions. Hamilton v. Johnson, 1999 ND 208 Summary judgment summarily affirmed under N.D.R.App.P. 35.1(a)(6). Huber v. Oliver County, 1999 ND 220 A trial court is not required to instruct the jury in the exact language sought by a party if the instructions adequately and correctly inform the jury of the applicable law. Counties have a duty to construct township roads in a way that maintains the natural flow and drainage of surface waters to the extent established engineering standards or sound engineering design practice would require as prudent under the circumstances. Interest of L.A.G., 1999 ND 219 To transfer prosecution of a juvenile from juvenile court to the district court, the State must demonstrate probable cause the juvenile committed the delinquent act charged. Probable cause is a minimal burden of proof which is met if there is a definite probability based on substantial evidence the offense has been committed. Juvenile court judge's review of judicial referee's transfer recommendation is a review on the entire record, unless the court orders a hearing, and should include a review of the transcript of the proceedings held before the referee. Interest of C.R., 1999 ND 221 Although incarceration, by itself, does not establish abandonment of a child for purposes of terminating parental rights, the probability of serious mental or emotional harm to the child may be established by prognostic evidence the parent's current inability to care for the child will continue long enough to render improbable the successful assimilation of the child into a family if the parent's rights are not terminated. Interest of Z.R., 1999 ND 214 To terminate the parental rights of a deprived child, the State must prove by clear and convincing evidence the conditions and causes of the deprivation are likely to continue and the child is suffering or in the future will suffer serious physical, mental, moral, or emotional harm. Although review of parental termination is de novo, the appellate court will give appreciable weight to the findings of the juvenile court. Interest of D.F.G., 1999 ND 216 On appeal, a juvenile court's decision to terminate parental rights is reviewed in a manner similar to trial de novo, giving deference to the juvenile court decision. A juvenile court's decision to terminate parental rights will be affirmed when the State proves by clear and convincing evidence: (1) the child is deprived, (2) the conditions and causes of the deprivation are likely to continue, and (3) the child is suffering or the child will in the future probably suffer serious physical, mental, moral, or emotional harm. Kappel v. Director, Dep't of Transportation, 1999 ND 213 Reasonable suspicion may be established without an officer observing a particular violation of the law. Two factors, which standing alone may not establish reasonable suspicion, together may constitute reasonable suspicion. Kuntz v. Muehler, 1999 ND 215 The two-year professional malpractice statute of limitations does not apply to certified financial planners. Lemer v. Campbell, 1999 ND 223 The prevailing party for purposes of awarding costs and disbursements is based upon success upon the merits, not upon damages, and a party may be the prevailing party although recovering no award of damages. The scope and substance of counsel's opening and closing arguments lie within the trial court's discretion. Prejudice due to the probative force of evidence is not unfair prejudice. Generally, a court should not disturb a jury's damages verdict unless it is so excessive or inadequate as to be without support in the evidence. St. Yves v. DJ's Dance & Arcade, Inc., 1999 ND 211 Jury verdict summarily affirmed under N.D.R.App.P. 35.1(a)(3). State Bank & Trust of Kenmare v. Brekke, 1999 ND 212 Acquiring title by adverse possession bars the remedy of ejectment and takes away all other remedy of the former owner. A quitclaim deed may contain a special warranty of title against claims by, under, or through the grantor. State v. Mathre, 1999 ND 224 A trial court does not obviously err by instructing as to self-defense but not as to lesser included offenses when a defendant tried for aggravated assault requests a self-defense instruction but does not request instructions as to lesser included offenses. State v. Tuchscherer, 1999 ND 209 Judgment of conviction for theft of property summarily affirmed under N.D.R.App.P. 35.1(a)(1). State v. Velasquez, 1999 ND 217 A demand for change of judge made more than ten days after notice of assignment of judge is untimely. A court may order restitution paid to a government drug task force. The defendant's right to be confronted with witnesses is not violated when defendant's counsel is given ample opportunity to expose weaknesses in the witness's testimony. Stout v. Fisher Industries, Inc., 1999 ND 218 A trial court's discovery decisions will not be reversed on appeal absent an abuse of discretion. To be valid and enforceable, a contract must be reasonably definite and certain in its terms. An agreement which is so uncertain and incomplete as to any of its essential terms that it cannot be carried into effect without new and additional stipulations between the parties is not enforceable. Syvertson v. Heit, 1999 ND 207 Dismissal of civil suit summarily affirmed under N.D.R.App.P. 35.1(a)(1). Wilson v. State, 1999 ND 222 In a post-conviction relief proceeding, claims of ineffective assistance of counsel should be raised in the district court. An issue previously raised in a direct appeal will not be considered again in a subsequent application for post-conviction relief. A district court should not summarily deny an application for post-conviction relief alleging ineffective assistance of counsel without affording the applicant an opportunity to provide evidentiary support for his allegations. Witcher v. N.D. Workers Compensation Bureau, 1999 ND 225 The Workers Compensation Bureau may offset previously paid impairment awards against subsequent impairment awards for other body parts if the previous awards are recalculated in a pending appeal.