City of Fargo v. Ovind , 1998 ND 69 - Criminal No. 970198 Police officer had a reasonable and articulable suspicion to justify a limited investigative stop of defendant in order to "freeze" the situation at the scene of a reported fight.
Gietzen v. Gietzen , 1998 ND 70 - Civil No. 970292 A finding of a significant change of circumstances requiring modification of custody based in part on custodial parent's move to another community to live with another person, and in part on a mature child's stated preference,is not clearly erroneous.
Kasprowicz v. Kasprowicz , 1998 ND 68 - Civil No. 970229 Whether or not domestic violence allegations create presumption are considered under amended best interest and welfare of the child statute. Allegations of domestic violence do not need corroboration. Rotating physical custody award must be in the best interest of the child and supported by findings.
State v. Boline , 1998 ND 67 - Criminal No. 970277 Police may stop a person in order to investigate an allegation of domestic violence if police have a reasonable and articulable suspicion domestic violence has occurred.
State v. Damron , 1998 ND 71 - Criminal No. 970187 Whether probable cause exists to support the issuance of a search warrant for the defendant's residence is reviewed using the "totality of the circumstances" approach. Trial court's implicit findings rejecting defendant's allegations of deliberate falsity by police officer in search warrant affidavit are not clearly erroneous.
March 26, 1998
Diversified Financial Systems v. Binstock , 1998 ND 61 - Civil No. 970190 In ruling on a motion for judgment notwithstanding the verdict, the trial court must view the evidence in the light most favorable to the litigant against whom the motion is made, without weighing the evidence or judging the credibility of the witnesses, to determine whether or not the evidence leads to but one reasonable conclusion.
Fode v. Capital RV Center, Inc. , 1998 ND 65 - Civil No. 970240 Buyers are entitled to revoke their acceptance of a motor home against both the immediate seller and the manufacturer when the seller's sales contract with the buyer and the manufacturer's warranty are so closely linked in time of delivery and subject matter, they blended into a single unit at the time of the sale. A trial court abuses its discretion by awarding buyers attorney fees without affording defendants an opportunity to be heard on the issue.
Loberg v. N.D. Workers Compensation Bureau , 1998 ND 64 - Civil No. 970287 The Supreme Court will reverse and remand a judgment affirming a Workers Compensation Bureau decision if the Court cannot determine whether the correct legal standard was applied by the ALJ. The Workers Compensation Bureau must adequately explain its disregard of medical evidence favorable to a claimant.
Robert v. Aircraft Investment Co., Inc. , 1998 ND 62 - Civil No. 970219 Negligence may be proven by circumstantial evidence, including application of the res ipsa doctrine. A trial court's finding the elements of res ipsa have been met must be supported by reasonable evidence in the record. In a negligence action, a defendant may prove a measure of damages different from the one elected by the plaintiff, but has the burden to prove it is a more appropriate measure. This court will not consider questions first raised on appeal.
State v. Jorde , 1998 ND 63 - Criminal No. 970356 Criminal Judgment and sentence of two years for corruption or solicitation of a minor summarily affirmed under N.D.R.App.P. 35.1(a)(4), (7).
State v. Serr; State v. Koble , 1998 ND 66 - Criminal No. 970282 Supreme Court has jurisdiction over appeal by State from order dismissing conspiracy charges against defendants after a preliminary hearing. Possession of a controlled substance can be an overt act indicating conspiracy to deliver a controlled substance. A conspiratorial agreement cannot be based solely upon proof of a buyer-seller relationship. Evidence of association with other "conspirators," or presence at scene of crime, is not sufficient by itself to infer a conspiratorial agreement.
March 20, 1998
Disciplinary Board v. Swanson , 1998 ND 60 - Civil No. 980070 Report and conditional admission for purpose of discipline rejected. Interim suspension ordered.
March 9, 1998
Davis v. Neshem , 1998 ND 57 - Civil No. 970263 Where a testatrix's will devises property to her issue and designates her stepson as "our son," the will, when construed as a whole to give meaning to that designation and to the definition of "issue," expresses the testatrix's intent to treat her stepson's children as her issue and as devisees under her will.
March 5, 1998
City of Dickinson v. Lindstrom , 1998 ND 52 - Criminal No. 970168 Although the trial court's method of permitting "banking" of peremptory challenges was error, reversal was not mandated because the challenges were actually exercised in a manner consistent with N.D.R.Crim.P. 24(b), and N.D.C.C. 29-17-46.
Dethloff v. Dethloff , 1998 ND 45 - Civil No. 970233 Entry of a default divorce judgment dividing property is an appropriate exercise of a trial court's inherent power to sanction where the trial court found the defendant had used delay and evasiveness as an intentional litigation strategy. Sanctions must be reasonably proportionate to the procedural misconduct. In a default divorce, a trial court must, absent an agreed settlement, require proof of the value of the marital estate and explain why the division is equitable.
Global Financial Services, Inc. v. Duttenhefner , 1998 ND 53 - Civil No. 970215 Under the North Dakota law of assignment, an assignee of the Resolution Trust Corporation is entitled to the benefit of the federal statute of limitations under 12 U.S.C. 1821(d)(14).
Hanneman v. Continental Western Ins. Co. and Kurry , 1998 ND 46 - Civil No. 970179 The term "borrow" in an insurance contract means receiving something from another for one's own use. Insured was not covered by insurance policy because insured was not a borrower of car. Insurer had no duty to defend insured because insured was released from personal liability. Nor was insurer required to pay insured's attorneys fees and expenses because coverage was found not to apply.
Huesers v. Huesers , 1998 ND 54 - Civil No. 970348 In redetermining custody, the trial court should have considered a statutory amendment clarifying what domestic violence invokes a presumption against placing custody with the perpetrator. The court's error in refusing to consider the statutory amendment was harmless because, as a matter of law, the husband's conduct constituted a pattern of domestic violence within a reasonable time proximate to the divorce, thereby invoking the presumption.
In the Interest of M.B. , 1998 ND 44 - Civil No. 980059 Order requiring treatment at St. Alexius Medical Center summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Kaler v. Kraemer , 1998 ND 56 - Civil No. 970237 Complaints are construed liberally so as to do substantial justice.
Linrud v. Linrud , 1998 ND 55 - Civil No. 970238 Where appellant failed to present evidence showing funds were unaccounted for or inappropriately spent, the trial court's findings that marital assets were adequately accounted for were not clearly erroneous. Where appellant failed to present evidence showing how the trial court could make an equal division of marital property and keep the farming operation intact, the trial court's marital property division was not clearly erroneous. Trial court may equalize parties' incomes in its division of property. Phantom tax consequences are not a relevant basis on which to divide marital property.
Nesseth v. Omlid , 1998 ND 51 - Civil No. 970099 Failure to object or request a curative instruction to improper arguments forfeits the right to raise the issue on appeal. A trial court has an independent duty to intervene if improper comments affect a litigant's substantial rights. A trial court's denial of a new trial on damages is not an abuse of discretion where the jury's award is supported by sufficient evidence. A trial court must make a clear statement of the reasons for a denial of a new trial.
State v. Guilbert , 1998 ND 43 - Criminal No. 970280 Trial court's order suppressing evidence and dismissing drug charges is summarily reversed under N.D.R.App.P. 35.1(b).
State v. Olander , 1998 ND 50 - Criminal No. 970273 The trial court's failure to instruct the jury that the State had the burden of proving beyond a reasonable doubt the accused did not act in self-defense was obvious error.
Tetzloff v. Tetzloff , 1998 ND 47 - Civil No. 970317 Trial court's order dismissing child custody action summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
Wahl v. Morton County Social Services , 1998 ND 48 - Civil No. 970248 In determining medicaid eligibility, the Department of Human Services' use of gross, rather than net, unearned income to compute the community spouse's resource allowance is a reasonable and appropriate application of the medicaid laws. North Dakota, as a section 209(b) state, can use more restrictive medicaid eligibility requirements than are used under the supplemental security income program. Delay in holding a fair hearing and providing an incomplete notice of hearing do not constitute reversible errors, absent a showing of substantial prejudice.
Zarrett v. Zarrett , 1998 ND 49 - Civil No. 970178 A trial court has continuing authority to modify child support orders, and res judicata ordinarily will not prevent modification. When modification is sought more than one year after the prior order, N.D.C.C. 14-09-08.4 requires the court to modify the child support obligation to the amount required under the child support guidelines. An order directing payment of post-majority support, including college expenses, constitutes child support.