Jorgenson v. Agway, Inc., 2001 ND 104 North Dakota's Consumer Fraud Act, N.D.C.C. ch. 51-15, applies to a farmer who purchases confection sunflower seed for use in cultivating a sunflower crop for subsequent sale and who alleges the seed is defective and marketed in violation of the Act.
May 24, 2001
Estate of Schmidt, 2001 ND 100 Appeal of eleven orders in probate case summarily affirmed under N.D.R.App.P. 35.1(a)(1) (appeal is frivolous and completely without merit). Larson v. Norkot Manufacturing, 2001 ND 103 The discovery rule tolls the statute of limitations in malpractice actions until the plaintiff knows, or with reasonable diligence should know, of the injury, its cause, and the defendant's possible negligence. To trigger the running of the statute of limitations, a plaintiff need not fully appreciate the potential liability or be convinced of his or her injury, but need only know enough to be on notice of a potential claim. Remmick v. Whitman, 2001 ND 102 The interest of a recorded mineral deed grantee, who is not a named party in a subsequent action to foreclose a mortgage on the real property, is not affected by the foreclosure action. Triple Quest, Inc. v. Cleveland Gear Co., Inc., 2001 ND 101 An order dismissing an action without prejudice on the ground that jurisdiction or venue is proper in another state based on a contractual forum selection clause is appealable. When an interest has been transferred during an action, the transferee need not be substituted or joined as a party to have standing to pursue an appeal.
May 22, 2001
Christl v. Swanson, 2001 ND 98 Under the Child Support Guidelines, prior to the August 1, 1999 amendments, the district court could deduct from an obligor's adjusted gross income business costs actually incurred and paid, but not expensed for internal revenue purposes. Eaton v. State, 2001 ND 97 A criminal defendant waives nonjurisdictional defects by entering a knowing and voluntary guilty plea. Violations of the Interstate Agreement on Detainers Act that do not deprive the district court of personal jurisdiction are waived by a guilty plea. The burden of proving a basis for post-conviction relief rests on the petitioning defendant. James v. Griffin, 2001 ND 90 Once prior acquiescence of a boundary has been destroyed by a nonacquiescent possession, the 20-year period for establishing acquiescence begins running anew. McDowell v. Gillie, 2001 ND 91 Stopping at the scene of an accident and inquiring whether any assistance is needed can constitute the rendering of aid and assistance within the meaning of the Good Samaritan Act. Generally, issues involving the reasonable person standard and a person's subjective state of mind are inappropriate for disposition by summary judgment. Moen v. Thomas, 2001 ND 95 Statements of assent to an alleged oral contract are not hearsay but constitute a verbal act. Parties to a lease may by mutual consent terminate, alter, or amend their agreement. Rask v. Nodak Mutual Ins. Co., 2001 ND 94 In determining whether a vehicle is an underinsured motor vehicle, only the policy insuring that motor vehicle is considered. Schuck v. Montefiore Public School Dist. No. 1, 2001 ND 93 Employees are required to exhaust available administrative remedies prior to pursuing their claim in court. Sollin v. Wangler, 2001 ND 96 A trial court should give an ultimate-outcome instruction informing the jury how its liability apportionment will affect an award of damages if the instruction is properly requested and the instruction will not confuse or mislead the jury. State ex rel. Olson v. Harrison, 2001 ND 99 The State has not consented to suit without proper service of process. Where no official with authority to accept service of process for the State was served in accordance with N.D.R.Civ.P. 4, the State has not been properly served. When a tribal court does not have personal jurisdiction over the State, the tribal court's order is not appropriate for recognition as a matter of comity. When a tribal court's order is not appropriate for recognition as a matter of comity, the State is not required to exhaust remedies available in tribal court. State v. Rue, 2001 ND 92 Arrests for probation violations may be made by court order or on probable cause. A probation violator, detained on a court order of apprehension for probation violations, is detained "pursuant to" conviction of an offense, and escape from such detention is a felony offense. Due process requires the State to prove, beyond a reasonable doubt, every element of an offense.
May 7, 2001
Kinzley v. Kinzley, 2001 ND 89 The trial court's judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
May 4, 2001
Fox v. Fox, 2001 ND 88 A choice between two permissible views of the evidence is not clearly erroneous when the trial court's findings are based either on physical or documentary evidence or inferences from other facts or on credibility determinations. A court's valuation of marital property is dependent upon the evidence presented by the parties.
May 3, 2001
Disciplinary Board v. Howe, 2001 ND 86 An attorney is appropriately suspended from the practice of law for 120 days when the hearing panel has found clear and convincing evidence of professional conduct violations involving lack of diligence, communication, and expediting litigation, as well as a disciplinary history of five prior disciplinary sanctions. Prior discipline is not remote, but is relevant as an aggravating factor when the prior incidents establish a pattern of misconduct. Disciplinary counsel may reasonably bill attorney fees at $75 per hour, which may be assessed against the attorney whose misconduct warranted the imposition of discipline. Estate of Murphy v. Maus, 2001 ND 87 To prevail in a legal malpractice action, a plaintiff must establish the attorney's malpractice proximately caused damage to the plaintiff.
May 1, 2001
Davis v. State, 2001 ND 85 A trial court is authorized to resentence a defendant who violates conditions of probation to any sentence that was initially available. Resentencing a defendant to a harsher sentence than his original sentence imposed does not violate double jeopardy or due process. Halvorson v. Halvorson, 2001 ND 75 Judgment denying a motion for reconsideration of a child support order is summarily affirmed under N.D.R.App.P. 35.1(a)(4). Interest of C.R.C., 2001 ND 83 Termination of parental rights is appropriate when the State proves by clear and convincing evidence that a child is deprived and the deprivation is not due primarily to a lack of financial resources; the causes and conditions of the deprivation will likely continue or will not be remedied; and the child is suffering, or will probably suffer, serious physical, mental, moral, or emotional harm from the deprivation. Meyer v. Hawkinson, 2001 ND 78 An alleged contract to share proceeds of a winning ticket in the Canadian lottery is unenforceable as contrary to the public policy of the state of North Dakota when the statutory language and legislative history so comprehensively and clearly convey the policy underlying North Dakota's repeated rejection of a state-operated lottery and high-stakes gambling. When an alleged contract is unenforceable on the basis of public policy, it is unnecessary to consider the issue of whether the contract existed. N.D. Fair Housing Council, Inc. v. Peterson, 2001 ND 81 Attorney General's opinions interpreting statutes do not bind the Court but will be followed if persuasive. Attorney General's opinions are afforded even greater consideration when they have been impliedly adopted by the legislature. Refusing to rent to an unmarried couple because they are seeking to cohabit is not unlawful under the discriminatory housing practices provision of the North Dakota Human Rights Act. Praus v. Mack, 2001 ND 80 A trial court may grant parties on a side of litigation additional peremptory challenges if they have essentially adverse or antagonistic interests. An expert witness may not be permitted to express an opinion if the facts disclosed by the evidence are such that it may be assumed the jury is capable of understanding them and arriving at its own conclusion. A trial court's failure to instruct the jury about the violation of a safety regulation is not prejudicial error, if the complaining party had the opportunity to argue the theory to the jury and the instructions given allowed for a finding of negligence if the jury believed the complaining party's evidence. Jury instructions on legal principles which illustrate how negligence law is applied in a specific situation are not indispensable if the parties are allowed to argue their theory of the case and the instructions given adequately inform the jury of the law. One or more jurors in a civil case making an improper unauthorized visit to the scene of the accident is not prejudicial in the absence of a showing it influenced the verdict. State v. Ellis, 2001 ND 84 A defendant seeking a change of venue under N.D.R.Crim.P. 21 has the burden of establishing a reasonable likelihood of prejudice so pervasive that a fair and impartial jury cannot be selected in the county of original venue. Except under N.D.C.C. 12.1-17-02(4), which involves firing a firearm or hurling a destructive device at another human being, aggravated assault is not a lesser included offense of attempted murder. In sentencing a defendant, a trial court may consider a conviction that was pending appeal during the sentencing hearing. State v. McHugh, 2001 ND 76 Conviction for gross sexual imposition based on a jury verdict is summarily affirmed under N.D.R.App.P. 35.1(a)(3),(4). State v. Paulson, 2001 ND 82 The failure of the parents of an injured person "incapacitated by the injury from giving the notice" to present the director of the office of management and budget a notice of claim within 180 days of discovery of the injury does not preclude the injured person from suing the State. Yantzer v. Yantzer, 2001 ND 77 Trial court's order denying a motion for change of custody is summarily affirmed under N.D.R.App.P. 35.1(a)(2). Young v. Johnson, 2001 ND 79 Appeal from district court order granting summary judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).