Estate of Lutz, 1999 ND 121 Probate appeal dismissed because of improvidently granted N.D.R.Civ.P. 54(b) certification.
June 25, 1999
Fargo Foods, Inc. v. Bernabucci, 1999 ND 120 A party seeking to terminate a contract under a termination provision in the contract must comply with the requirements of the termination provision.
June 23, 1999
Murphy v. Murphy, 1999 ND 118 There is no absolute right to a jury trial in an equitable proceeding. There is no right to a jury trial on a claim or counterclaim for damages if it is incidental to or dependent upon a primary claim for which a jury trial is not allowed. A defendant in a quiet title action may defend "after trial and within one year after the rendition of judgment therein, but not otherwise." Timely compliance with North Dakota's nonclaim statute is mandatory, and untimely claims are barred as a matter of law. Nefzger v. Nefzger, 1999 ND 119 Alcoholism is not an absolute bar to a parent obtaining child custody. A parent's extramarital relationships and past marijuana usage are not irrefutable indications of lack of moral fitness. A guardian ad litem's recommendation on child custody is not conclusive. Temporary rehabilitative spousal support can be awarded to a disadvantaged spouse to continue an accustomed standard of living.
June 18, 1999
Bruns v. N.D. Workers Comp. Bureau, 1999 ND 116 The Workers Compensation aggravation statute, N.D.C.C. 65-05-15 (1995), applies when a "new" work injury combines with and aggravates a preexisting condition. It is not necessary to prove "permanent impairment" as defined in N.D.C.C. 65-01-02(26) (1995) to establish "active impairment" under the aggravation statute. City of West Fargo v. Stuart, 1999 ND 99 Conviction for driving while under suspension is summarily affirmed under N.D.R.App.P. 35.1(a)(7). Disciplinary Board v. Moe, 1999 ND 110 Lawyer suspended from the practice of law for a period of 30 days. Emter v. Emter, 1999 ND 102 An adequate factual basis on the valuation of property is necessary for an appellate court to understand whether the trial court's distribution of marital property is clearly erroneous. Property division and spousal support should be considered together. Engebretson v. N.D. Workers Comp. Bureau, 1999 ND 112 Under the 1995 law, a claimant can recover benefits if the injury was substantially aggravated or accelerated by the employment. Speculative evidence is insufficient when tests could show whether claimant's employment substantially aggravated or accelerated an injury. Engel v. Montana Dakota Utilities, 1999 ND 111 An employer does not discriminate against an employee when refusing to hire, if the employee is not qualified for the job sought. An employee not qualified for a position cannot prove a prima facie case of discrimination. Ennis v. City of Ray, 1999 ND 104 A city is authorized to provide mandatory garbage collection services and collect fees for such services. A city's collection of mandatory garbage fees from property owners who refuse the service and dispose of their own garbage does not violate their due process rights. Hoff v. Berg, 1999 ND 115 North Dakota's statutory law requiring a court to grant grandparent's visitation unless found not in the child's best interests is unconstitutional, and creating a presumption that grandparent's visitation is in the child's best interests is unconstitutional. When changes to a statute are declared unconstitutional, the preexisting statute remains in effect. Holtz v. Holtz, 1999 ND 105 A mother's mental inability to parent a child as the child matures constitutes a material change of circumstances warranting a change of custody. A mother's mental inability to parent a child that required, in the child's best interests, a change of custody to the father constituted clear and convincing evidence to rebut the presumption against custody arising from the father's past incidents of domestic violence. In the Interest of R.K.E., 1999 ND 106 An order committing a delinquent or unruly child to the division of juvenile services may be extended for an additional two-year period upon a showing by clear and convincing evidence that the extension is necessary for the treatment or rehabilitation of the child. In the Interest of D.S.A., 1999 ND 100 Order requiring treatment at the North Dakota State Hospital summarily affirmed under N.D.R.App.P. 35.1(a)(2). In the Interest of M.S., 1999 ND 117 The district court may decide which mental health expert testimony is more credible. Kuntz v. Kuntz, 1999 ND 114 Intent and the existence of an oral contract are questions of fact. To be specifically enforceable, an oral agreement must be just and reasonable to the party against whom enforcement is sought, and must be sufficiently certain as to the act to be done. Moilan v. Moilan, 1999 ND 103 North Dakota does not follow the "minimalist" view of spousal support, which has as its object minimal self-sufficiency, but has adopted the "equitable" view, which attempts to enable the disadvantaged spouse to obtain "adequate" self support. The trial court must attempt to balance the burden created by the divorce and a spouse may be disadvantaged if he has foregone opportunities or lost advantages as a result of the marriage, or if he has contributed during the marriage to his wife's increased earning capacity. An unequal distribution of marital property based solely upon the parties' economic contributions to the marital estate, without considering other relevant factors, is clearly erroneous. Marital property must be valued as of the date of trial. Riehl v. Riehl, 1999 ND 107 Permanent spousal support is generally appropriate when the disadvantaged spouse cannot be equitably rehabilitated to make up for the opportunities lost during the course of the marriage or where the disadvantaged spouse is capable of rehabilitation but permanent support is needed to equitably distribute the overall reduction in the parties' separate standard of living. Spring Creek Ranch v. Svenberg, 1999 ND 113 Whether a party made a reasonable inquiry to ascertain the addresses of the mineral interest owners is a question of fact inappropriate for summary judgment. State by Workers Comp. v. Erhardt, 1999 ND 108 A district court judgment allowing the Workers Compensation Bureau to collect for breach of contract resulting in overpayment of benefits is summarily affirmed under N.D.R.App.P. 35.1(a)(6). State v. Smith, 1999 ND 109 Improper closing arguments by the State do not necessarily affect a defendant's right to a fair trial when the district court gives a curative instruction. Failure to give defendant's requested jury instruction is not error if the instruction given adequately advises the jury of the law. An unobjected-to jury instruction on conspiracy is not reversible error. State v. Stephens, 1999 ND 101 District court's order revoking probation summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).