Singha v. N.D. State Board of Medical Examiners , 1998 ND 42 - Civil No. 970264 Section 43-17-18(3), N.D.C.C., requires a foreign-educated applicant for a license to practice medicine to demonstrate to the Board of Medical Examiners the kinds of courses taken at a foreign institution, when combined with the successful completion of three years of Board-approved postgraduate training, are substantially equivalent to the kinds of courses required at a reputable medical or osteopathic college in the United States and the successful completion of one year of Board-approved postgraduate training. The procedures of the Administrative Agencies Practice Act, N.D.C.C. Ch. 28-32, apply to the Board's consideration of an application for licensure.
February 12, 1998
Bell v. State , 1998 ND 35 - Civil No. 970212 A petition for post-conviction relief must seek relief that can be granted under ch. 29-32.1, N.D.C.C., and must allege facts that support a claim for such relief. A petition for post-conviction relief may be summarily dismissed when petitioner fails to present evidence raising a genuine issue of material fact in response to State's motion for summary disposition. Trial court did not abuse its discretion by considering State's motion for summary disposition immediately after denying petitioner's motion for judgment by default.
Binstock v. Binstock , 1998 ND 27 - Civil No. 970311 Custody award of minor child to mother summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Boe v. Rose , 1998 ND 29 - Civil No. 970254 A purchaser of property from a personal representative must act in good faith to receive the protections afforded under N.D.C.C. 30.1-18-11. The trial court erred in granting summary judgment granting specific performance to a purchaser of farmland from the personal representative of an estate because, there was a genuine issue of fact whether the purchaser knew the personal representative needed the prior approval of the devisees and, therefore, was not acting in good faith when he purchased the property.
Estate of Engvald Stensland , 1998 ND 37 - Civil No. 970252 The right to appeal is jurisdictional, and may be considered by the court on its own initiative. In an unsupervised probate, an order leaving interrelated claims unsettled is not final under NDCC 28-27-02 and is not appealable.
Freed v. Unruh , 1998 ND 34 - Civil No. 970201 An unpleaded affirmative defense of release, tried by the implied consent of the parties and ruled upon by the trial court in a small claims proceeding, barred the plaintiff's action.
Griffeth v. Eid, et al. , 1998 ND 38 - Civil No. 970258 An easement from pre-existing use is not established when there was no apparent, permanent, and continuous use of a servient tenement. An easement by necessity is not established when alternative routes have not been eliminated as options, and defendant has offered reasonable alternative route.
Hogue v. Hogue , 1998 ND 26 - Civil No. 970131 Non-custodial father's relationship with, and failure to pay child support for, a child of a previous marriage is relevant in custody determination in a subsequent divorce action. Trial court need not designate one parent as the primary caretaker. Trial court must consider multiple child support obligations in determining a child support award. Trial court's denial of spousal support is clearly erroneous when rationale for denial cannot be discerned from the findings. Party appealing award of attorney's fees must affirmatively establish abuse of discretion by the trial court.
Hopfauf v. N.D. Workers Compensation Bureau , 1998 ND 40 - Civil No. 970269 Remand is necessary where it is unclear whether ALJ correctly applied the law. On appeal of an administrative agency order, the courts do not address issues not raised at administrative hearing and in specifications of error.
Hopfauf v. State , 1998 ND 30 - Civil No. 970223 Proceedings under the Uniform Post-Conviction Procedure Act are civil in nature. Whether sought in a motion for new trial or in an application for post-conviction relief, a new trial on the ground of newly discovered evidence will be granted only if the evidence is of such a nature that it would probably produce an acquittal at a retrial. Conclusory allegations about trial counsel's failure to call certain witnesses at trial, without identifying the potential witnesses, indicating what their testimony would have been, or indicating how their testimony might have affected the outcome of the trial, are insufficient to raise a genuine issue of material fact requiring a hearing or relief under the Uniform Post-Conviction Procedure Act.
State v. Hagen , 1998 ND 36 - Criminal No. 970172 Criminal Judgment is affirmed when substantial evidence supports jury verdict. District court is not obligated to call a witness that defense counsel does not call because counsel believed the witness would testify falsely.
State v. McMorrow , 1998 ND 28 - Criminal No. 970246 District court's findings and order affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
State v. Olson , 1998 ND 41 - Criminal No. 970200 The passenger compartment of a car may be searched incident to arrest for driving under suspension. Under inevitable discovery doctrine, evidence from the search of a trunk will not be suppressed when the valid search of the passenger compartment would have given probable cause to search trunk. Search warrant is supported by probable cause when items found in car provide nexus to search hotel room.
State v. Sabinash , 1998 ND 32 - Criminal No. 970163 The defendant's incriminating statements to a deputy sheriff were made voluntarily. Miranda warnings are required only when the accused is in custody.
State v. Schlotman , 1998 ND 39 - Criminal No. 970249 In defending against charges of unlawful restraint of a minor under N.D.C.C. 12.1-18-03, only a parent or a person acting in loco parentis with the children at the time of the offense can claim a parental equivalent relation as a defense to prosecution. Error by the court in instructing the jury on the law of the case is not reversible error if the erroneous instruction could only have favored, not prejudiced, the defendant, even though the defendant is found guilty.
State v. Wika , 1998 ND 33 - Criminal No. 970267 An order denying State's motion for correction of illegal sentence under Rule 35(a) NDRCrimP is appealable under NDCC 29-29-28-07(4), as it affects a substantial right. The State may bring a motion under Rule 35(a), NDRCrimP, to correct an illegal sentence. A sentence that imposed less than the statutory mandatory minimum is an illegal sentence.
Tuhy v. Schlabsz , 1998 ND 31 - Civil No. 970176 Summary judgment is improper where genuine disputes of material fact exist about whether a claimant suffered a "serious injury," a threshold for recovery under the no-fault auto reparations law, NDCC ch. 26.1-41. In considering a motion for summary judgment, the trial court may not weigh the credibility of the evidence presented by each litigant.