Dennison v. N.D. Dep't of Human Services, 2002 ND 39 The State's recorded homestead statement for old age assistance benefits under N.D.R.C. 50-0707 (1943) affects the right or interest of the State in land in North Dakota under the exception to the Marketable Record Title Act in N.D.C.C. 47-19.1-11(2). In a quiet title action, parties claiming an interest in a tract of land are entitled to an adjudication of the extent, validity, superiority, and priority of their claims to the land. Gruebele v. Geringer, 2002 ND 38 A claimant's action to quiet title based on adverse possession will fail when the claimant is unable to prove hostile, exclusive, and continuous possession for the statutorily required time.
February 21, 2002
Kelly v. Kelly, 2002 ND 37 An order changing custody is a finding of fact, which will not be disturbed on appeal unless clearly erroneous. When the previous custody award was based on the parties' stipulation, the trial court must consider all relevant evidence in making a considered and appropriate custody decision. State v. Hirschkorn, 2002 ND 36 Because of the importance of an accused's confrontation rights, the safeguards built into N.D.R.Ev. 803(24), allowing admission in evidence of a child's hearsay statements about sexual abuse, must be strictly observed. When there is a total lack of factual support for admission of a child's hearsay statements under N.D.R.Ev. 803(24) and a probability that the erroneous admission of the hearsay statements affected the outcome of the trial, admission of the statements is obvious error entitling the defendant to a new trial. Zeller v. Zeller, 2002 ND 35 When the relevant factors for consideration in determining a motion to change the residence of a child to another state weigh in favor of the custodial parent's request to relocate the child, the trial court's denial of the motion is reversible error. A stipulated divorce provision for an automatic change in custody upon the occurrence of a future event is unenforceable and the district court retains control over the rights of children, regardless of any contrary agreements of divorcing parties.
February 20, 2002
Bertsch v. Duemeland, 2002 ND 32 Whether a communication that is capable of a defamatory meaning is understood by the recipient as defamatory is ordinarily a question of fact. To recover for interference with a business relationship, a plaintiff must show he would have obtained some economic benefit in the absence of the interference. Buchholz v. N.D. Dep't of Transportation, 2002 ND 23 A test operator scrupulously complies with the State Toxicologist's approved method to conduct a breath test if the test operator observes that the subject had nothing to eat, drink, or smoke in the twenty minutes prior to the collection of a breath sample. Burke v. State, 2002 ND 18 Judgment denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (2). City of Devils Lake v. Lawrence, 2002 ND 31 An officer's reasonable and articulable suspicion that an individual has committed the offense of disorderly conduct is sufficient to justify a temporary detention of that individual for investigative purposes. City of Fargo v. Steffan, 2002 ND 26 The arrest of a person in a public place for a public offense committed in the officer's presence is neither a violation of the United States' nor North Dakota's Constitution. Under the search and seizure jurisprudence of both the United States Supreme Court and the North Dakota Supreme Court, an open doorway is a public place. City of Jamestown v. Jerome, 2002 ND 34 A police officer is not fulfilling a community caretaking function when approaching a person under circumstances where it is obvious the person is neither in need of nor desires assistance. Not all communications between law enforcement officers and citizens involve seizures implicating Fourth Amendment rights. A seizure within the context of the Fourth Amendment occurs only when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. Estate of Howser, 2002 ND 33 Whether undue influence exists is a question of fact. A trial court may remove the personal representative of an estate for cause. Ghorbanni v. N.D. Council on the Arts, 2002 ND 22 Presenting a claim letter to an assistant attorney general does not satisfy N.D.C.C. 32-12.2-04(1), which requires that notice of a claim against the State be presented to the Director of the Office of Management and Budget. An action for retaliatory discharge in violation of public policy sounds in tort, not contract. Grosinger v. M.B.K., 2002 ND 25 The phrase "likely to engage in further acts of sexually predatory conduct," used for commitment of sexually dangerous persons, means the person's propensity towards sexual violence is of such a degree as to pose a threat to others. Hughes v. State, 2002 ND 28 Issues raised in the district court but not briefed on appeal are waived. A trial court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. No appeal lies from a final order in a habeas corpus proceeding. Knutson v. Knutson, 2002 ND 29 In considering whether a settlement agreement between divorcing parties should be enforced, the trial court should inquire: (1) whether the agreement is free from mistake, duress, menace, fraud, or undue influence; and (2) whether the agreement is unconscionable. In the context of improperly coercing a spouse to sign a settlement agreement, undue influence is the improper use of power or trust in a way that deprives a person of free will and substitutes another's objective. When the child support guidelines do not address a situation, as in the case of parents having joint physical custody of a child for equal amounts of time, the trial court must enter an order appropriate to the needs of the child and the ability of the parent to pay. Mau v. National Union Fire Ins. Co. of Pittsburgh, 2002 ND 21 This case is remanded for further proceedings upon receipt of an answer to a question certified to the Wisconsin Supreme Court. Olson v. Olson, 2002 ND 30 A marital property valuation within the range of evidence presented to the trial court is not clearly erroneous. A proper finding of net income is essential to a correct child support determination. Piatz v. N.D. Dep't of Transportation, 2002 ND 20 Judgment of the district court affirming the decision of the Department of Transportation suspending driver's license for driving under the influence is summarily affirmed under N.D.R.App.P. 35.1(a)(5). Red Paint v. State, 2002 ND 27 A post-conviction relief claim of disclosure of privileged communications is barred by res judicata if it was fully and finally determined in a previous proceeding. A holder of a privilege waives the right to assert the privilege if he voluntarily discloses any significant portion of the privileged matter. It is misuse of process to fail to raise an issue on direct appeal which is appropriate for review on direct appeal. State v. Guy, 2002 ND 19 Conviction of gross sexual imposition, burglary, robbery, and felonious restraint is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7). State v. Ringsrud, 2002 ND 17 Judgment of conviction for unlawful possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (3). State v. Roberson, 2002 ND 24 While a defendant's disruptive conduct in court may, in some instances, be sufficient grounds to require a competency hearing, not all disruptive defendants are incompetent to stand trial. Rather, the conduct may be contempt of court.
February 19, 2002
State v. Randall, 2002 ND 16 Under N.D.R.Ev. 609 (a)(i), the burden is on the State to point to a danger of prejudice that substantially outweighs the probative value of prior convictions offered by a defendant in a criminal case to impeach a witness for the State. Error is harmless under N.D.R.Ev. 609(a)(i) if the witness's credibility was sufficiently impeached by other evidence, or if the State's case was strong enough to support a conviction even apart from the witness's testimony.