In the Interest of N.S., 2002 ND 123 The district court order for continuing mental health treatment is summarily affirmed under N.D.R.App.P. 35.1(a)(2). Johnson Farms v. McEnroe, 2002 ND 122 A finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing court is left with a definite and firm conviction a mistake has been made.
July 16, 2002
Kautzman v. Kautzman, 2002 ND 118 A change of substance that contradicts the transcript of a deposition is impermissible unless it can plausibly be represented as the correction of an error in transcription. Lithun v. DuPaul, 2002 ND 120 Disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(4). Matrix v. TAG Investments, 2002 ND 119 An order and judgment offsetting the amounts the parties owed each other are summarily affirmed under N.D.R.App.P. 35.1(a)(7), subject to an adjustment of damages and a reduction in costs. State v. Maurstad, 2002 ND 121 Challenges to probationary searches, authorized by a probationer's conditions of probation, are reviewed under the standard of whether the search was reasonable, after examining the totality of the circumstances, including whether the search was performed in a reasonable manner. Whether a probationary search was conducted as a subterfuge for a criminal investigation is no longer considered.
July 15, 2002
Brandt v. Milbrath, 2002 ND 117 Although prior driving behavior may be probative of negligence and comparative negligence, it may be excluded because of a witness's uncertainty as to the identity of the vehicle or driver. The district court and appellate court apply different standards when considering a motion for a new trial. When considering a motion for a new trial, based on insufficient evidence, the district court must weigh the evidence and examine the evidence supporting the verdict and the evidence challenging the verdict. On appeal, the standard for reviewing an order denying a motion for new trial is, after viewing the evidence in the light most favorable to the verdict, whether there is sufficient evidence to justify the verdict.
July 11, 2002
Corbett v. Corbett, 2002 ND 103 There must be some factual basis in the record for the length of time spousal support is awarded, but a specific plan of rehabilitation is not required. On questions of spousal support, we do not substitute our judgment for that of the trial court. Disciplinary Board v. Edwardson, 2002 ND 106 A lawyer who cannot comply with a discovery request without jeopardizing the client should withdraw from representation rather than violate the rules of professional conduct. Lawyer suspended from the practice of law for 60 days. Interest of R.K., 2002 ND 111 The definition of a deprived child is broad enough to include a child whose parent, while never having had the opportunity to care for the child, is shown to be presently incapable of providing parental care for the child. In making a custody disposition under the Uniform Juvenile Court Act, the court has considerable latitude but must rule consistent with the purpose of the Act to provide for the care of the child in a family environment whenever possible, separating the child from a parent only when necessary for the child's welfare or in the interest of public safety. Larson v. McMorrow, 2002 ND 108 The district court's issuance of a domestic violence protection order is summarily affirmed under N.D.R.App.P. 35.1(a)(7). Mayer v. Mayer, 2002 ND 109 Order refusing to vacate a stipulated divorce decree is summary affirmed under N.D.R.App.P. 35.1(a)(4). Nodak Mutual Ins. Co. v. Stegman, 2002 ND 113 An acknowledgment of satisfaction of judgment must be notarized or otherwise witnessed and authenticated. A person who does not regain consciousness after an accident and does not suffer conscious pain and suffering may bring a personal injury action against the tortfeasor for other damages, and therefore is an "injured person" under the hospital lien statute, N.D.C.C. 35-18-01. A hospital lien attaches immediately upon rendering of medical services to a person injured in an accident. A valid hospital lien has priority over claims of other creditors, and the hospital is entitled to collect the full amount of its lien from the tortfeasor's insurance without equitable allocation with other creditors' claims. Nowling v. BNSF Railway, 2002 ND 104 Under N.D. Const. art. XII, sec. 13, the right of way for an operating railroad line is a public highway that is not subject to adverse possession or acquiescence. Phipps v. N.D. Department of Transportation, 2002 ND 112 A chemical test is performed when a breath, blood, or urine sample is taken and preserved for analysis. Performance of a chemical test does not ensure the admissibility of the test results. A chemical test performed exactly two hours after driving is performed within two hours of driving. Piatz v. Austin Mutual Ins. Co., 2002 ND 115 When the record on appeal does not allow for a meaningful and intelligent review of an alleged error, we will decline to review the issue. An insurance company does not waive its defenses regarding the reasonableness and necessity of continued treatment by initially paying no-fault benefits. A witness need not be licensed in a particular field to be an expert, so long as the witness possesses the requisite knowledge, skill, experience, training, or education in that field. Sevland v. Sevland, 2002 ND 110 Supervised visitation is not required unless there is a serious bodily injury, use of a dangerous weapon, or a pattern of domestic violence. The visitation statute is not designed to place into the hands of children power over the occurrence, length, time, or place of the visits. Shaw v. Shaw, 2002 ND 114 A child support obligor is entitled to an adjustment of a child support obligation for extended visitation if the trial court orders visitation or custody for the obligor parent that exceeds sixty out of ninety consecutive nights. State v. Guthmiller, 2002 ND 116 Whether probable cause exists to issue a search warrant is a question of law, and on appeal, the sufficiency of information before the magistrate is reviewed based on the totality of the circumstances. For a home search warrant, the evidence before the magistrate must show a nexus between the home and the contraband sought. State v. Jackson, 2002 ND 105 It is not ineffective assistance of counsel to fail to move for a judgment of acquittal when the prosecution has presented a prima facie case. State v. Stewart, 2002 ND 102 Under N.D.R.Ev. 609(a)(i), for the purpose of attacking the credibility of a testifying accused, evidence that the accused has been convicted of a felony that meets the time limit of subdivision (b) must be admitted if the court determines that the probative value of admitting that evidence outweighs its prejudicial effect. Among the factors for a trial court to consider in weighing the probative value of a prior felony conviction and its prejudicial effect are impeachment value of the prior crime, the time of the conviction and the witness's subsequent history, similarity between the prior crime and the charged crime, importance of the defendant's testimony, and the centrality of the credibility issue. State v. Taylor, 2002 ND 107 The trial court's judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2).