Disciplinary Board v. Boulger, 2001 ND 210 A lawyer commits an ethical violation when the lawyer drafts a will for an unrelated client giving the lawyer a contingent bequest of a substantial gift.
December 28, 2001
Consolidated Telephone v. Western Wireless Corporation, 2001 ND 209 Unless the Federal Communications Commission's rulings and regulations have been appropriately challenged in the proper federal forum, a state court is not at liberty to review the FCC's statutory interpretation even if its soundness is doubted, and the state court must apply the rulings and regulations as written. State regulatory bodies and state courts have concurrent jurisdiction to determine preemption questions arising under the federal Communications Act. A "commercial mobile radio service" as defined by federal law need not obtain a certificate of public convenience and necessity from the Public Service Commission to compete with a landline local exchange telephone service in the state.
December 24, 2001
Dimond v. State Board of Higher Education, 2001 ND 208 A breach of contract action against the State is governed by the three-year statute of limitations in N.D.C.C. 28-01-22.1.
December 21, 2001
Gepner v. Fujicolor Processing, Inc., 2001 ND 207 N.D.R.Civ.P. 60(b) is to be liberally construed and applied, and trial courts should be more lenient in granting motions to vacate default judgments than in vacating judgments in cases which have been tried on their merits. The Workers Compensation Bureau's determination of benefits to be awarded under the Act are not res judicata on the issue of damages available in an injured worker's separate civil action against an uninsured employer under N.D.C.C. 65-09-02. A defendant may seek an independent mental examination of the plaintiff under N.D.R.Civ.P. 35(a) by presenting evidence placing the plaintiff's mental condition in controversy.
December 20, 2001
Belgarde v. Askim, 2001 ND 206 Before dismissing a cause of action to sanction a party for destruction of evidence, the trial court must consider the culpability of the party against whom sanctions are being imposed, the prejudice to the party moving for sanctions, and the availability of less severe alternative sanctions. City of Fargo v. Roberson, 2001 ND 204 The Supreme Court will not consider questions that were not presented to the trial court and are raised for the first time on appeal. Heick v. Erickson, 2001 ND 200 In reviewing the denial of an application for a writ of certiorari, the Supreme Court does not delve into the merits of the trial court's decision but only determines whether the lower court exceeded its jurisdiction in acting. Interest of D.P., 2001 ND 203 For hospitalization in a mental health case, the district court must find by clear and convincing evidence that alternative treatment is not adequate or hospitalization is the least restrictive alternative. Interest of M.C.H., 2001 ND 205 Juveniles between the ages of seven and fourteen have no common law right to a presumption of incapacity to commit a crime, because the criminal capacity of children between the ages of seven and fourteen has been declared by statute. State v. Barth, 2001 ND 201 A trial court has broad discretion in selecting a method to impanel a jury, if it permits the defendant to exercise peremptory challenges without embarrassment and does not intimidate him from exercising them. A person is guilty of preventing an arrest if, with intent to prevent a public servant from effecting an arrest, he creates a substantial risk of bodily injury to the public servant or to anyone else except himself, or employs means justifying or requiring substantial force to overcome resistance to making the arrest. State v. Baumgartner, 2001 ND 202 One cannot be an accomplice without having the requisite criminal intent for the underlying offense, even if he or she is a co-conspirator. Law enforcement officers who feign complicity in a crime in the pursuit of evidence are not accomplices. The purpose of a motion to dismiss is to test the sufficiency of the information or indictment. It is not a device for summary trial of the evidence, and facts not appearing on the face of the information cannot be considered.
Gaab v. Ochsner, 2001 ND 195 A party is not required to prove actual or imminent domestic violence in order to obtain an extension of an existing protection order. Security State Bank v. Orvik, 2001 ND 197 The exception to the requirement to file crop liens applies to crop-share agreements and not to cash rent leases, and gives a landlord with an unrecorded crop-share agreement priority against subsequent purchasers or encumbrancers up to the landlord's share of the crops. State v. Clark, 2001 ND 194 Failure to file a transcript may prevent a party from being successful on appeal. A trial court may modify conditions of probation if a defendant fails to pay adequate restitution. State v. Gates, 2001 ND 196 The trial court's denial of a motion to deem a class C felony theft conviction to be a misdemeanor under N.D.C.C. 12.1-32-02(9) is summarily affirmed under N.D.R.App.P. 35.1(a).
December 5, 2001
Alerus Financial v. Lamb, 2001 ND 179 Summary judgments granting foreclosure of mortgages on rental properties are summarily affirmed under N.D.R.App.P. 35.1(a)(6). Bell v. State, 2001 ND 188 A trial court may deny appointment of counsel for an indigent post-conviction applicant who is able to file an application without assistance, if the application, read in the light most favorable to the applicant, does not raise any substantial issue of law or fact. It is a misuse of process to raise issues in a post-conviction application that were not raised in the original criminal prosecution, or, if raised, were not pursued in a properly perfected appeal. Bellefeuille v. Bellefeuille, 2001 ND 192 A trial court does not abuse its discretion in denying a motion for relief from judgment, when the motion was made twenty-one years after the judgment was filed. A trial court does not have jurisdiction to modify rehabilitative spousal support after the scheduled payments are completed, unless the trial court retains jurisdiction to do so within the decree. Chadwick v. N. Dak. Dep't of Transportation, 2001 ND 180 A police officer has reasonable grounds to believe a person is in actual physical control of a vehicle when that person is found conscious in the driver's seat of an idling vehicle. DeCoteau v. Nodak Mutual Insurance Co., 2001 ND 182 When a named plaintiff whose individual claim becomes moot has not even moved for class action certification prior to evaporation of his personal stake in the lawsuit, the plaintiff may not avail himself of the class action exception to the mootness doctrine. Fortis Benefits Ins. Co. v. Hauer, 2001 ND 186 If the language of an insurance policy is clear and explicit, the language should not be strained in order to impose liability upon the insurer. When a conflict exists between a specific provision and a general provision in a contract, the specific provision ordinarily prevails over the general provision. Gleich v. Gleich, 2001 ND 185 A child support obligor is entitled to an adjustment of a child support obligation for extended visitation if the visitation ordered by the trial court exceeds sixty out of ninety consecutive nights. Hellerud v. N. Dak. Dep't of Transportation, 2001 ND 181 Judgment of the district court affirming the decision of the Department of Transportation to revoke appellant's driver's license for refusing to submit to an on-site chemical screening test is summarily affirmed under N.D.R.App.P. 35.1(a)(5). Interest of D.R., 2001 ND 183 In deciding whether to terminate parental rights, the court can give substantial credence to evidence indicating a pattern of conduct by a parent that forms a basis for reasonable prediction the deprivation of the child is likely to continue and result in serious physical, mental, or emotional harm. Lenthe Investments, Inc. v. Service Oil, Inc., 2001 ND 187 Mutual assent to a contract is determined by the words of the contract and the parties' objective manifestations of assent. An agreement to agree is enforceable if its terms are reasonably certain and definite. Sommer v. Sommer, 2001 ND 191 Permanent spousal support may be awarded when a marriage has been of long duration and the dependant spouse has health problems or is of such an age that adequate rehabilitation is unlikely. Under some circumstances, voluntary retirement by a supporting spouse that results in a material change in circumstance may be a valid basis for modification of spousal support. State v. Johnson, 2001 ND 184 Lack of criminal responsibility is not an affirmative defense, and the nonexistence of the defense is an element of the offense which the State must prove beyond a reasonable doubt. Appellate courts may notice obvious error affecting a substantial right of a party even if the error was not raised by the parties on appeal. State v. Kensmoe, 2001 ND 190 A trial court acts within its statutory authority when extending a defendant's probationary period following a restitution hearing. An extension of a probation period does not subject a defendant to multiple punishments in violation of the prohibition against double jeopardy. A challenge to the constitutionality of a statute must be properly preserved for appeal, and the record on appeal must allow for a meaningful and intelligent review of the alleged unconstitutionality of the statute. State v. Martin, 2001 ND 189 To be convicted of continual sexual abuse of a child, one must be shown to have engaged in three or more sexual acts or contacts during a period of three months or more. This period has no maximum time limit. Toni v. Toni, 2001 ND 193 Agreements by divorcing parties to divest the trial court of jurisdiction to modify the amount and term of spousal support, which are adopted and incorporated into the divorce decree, are enforceable.