Belisle v. Gibson, 2000 ND 191 The trial court's denial of a motion for a new trial and its judgment entered on a jury verdict finding defendants not liable in a personal injury action are summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4). Center Mutual Insurance Co. v. Thompson, 2000 ND 192 Terms of an insurance policy are given their ordinary, usual, and commonly accepted meaning. The absence of a definition in an insurance policy in and of itself does not establish ambiguity or mean the issue is automatically resolved in favor of the insured. The existence of an employment relationship is ordinarily a question of fact.
October 30, 2000
Kautzman v. Kautzman, 2000 ND 190 When a party executes on a money judgment to secure a division of property, the debtor is not entitled to an exemption for life insurance policies or annuities. A trial court may enforce an equitable lien by whatever means appropriate to do justice between the parties. If a party cannot demonstrate prejudice resulting from an allegedly defective notice, there is no right to redress.
October 26, 2000
Anderson v. Resler, 2000 ND 183 In deciding a request to change custody, the court must consider whether there has been a significant change of circumstances and whether modification is necessary to serve the best interests of the child. Persistent and willful denial or interference with visitation may result in a change of custody. Burlington Northern v. Benson County Water Resource District, 2000 ND 182 Water resource districts have only the powers granted by statute. Water resource districts do not have authority to order installation of a culvert in a township road to preserve a natural drainway for surface waters. Water resource districts have statutory authority to control water in channels, water storage devices, conservation and flood control projects, streams, watercourses, ditches, and drains, but they have no authority to control surface waters not falling within those terms. Neither the owner of the upper land nor the owner of the lower land may interfere with the natural drainage so as to injure the rights of the other. City of Jamestown v. Dardis, 2000 ND 186 Absent one of the exceptions to the warrant requirement at the time of the entry, evidence gained in violation of the Fourth Amendment's protections against unreasonable searches and seizures is inadmissible under the exclusionary rule. To sustain a finding of consent, the State must show affirmative conduct by the person alleged to have consented that is consistent with the giving of consent. Opening the door widely with the knowledge a police officer is on the threshold is not sufficient affirmative conduct to constitute consent. City of Mandan v. Leno, 2000 ND 184 The limited statutory right of a person arrested for driving while under the influence of intoxicating liquor to a reasonable opportunity to consult with an attorney attaches after arrest. Fandrich v. Wells Co. Bd. of Co. Comm., 2000 ND 181 While a court may issue a writ of mandamus ordering a government entity to comply with applicable law, it cannot control the government entity's discretion in determining the methods to be used in complying with the law. Political subdivisions have no duty to provide perfect drainage. When each party prevails on some issues, there is no single prevailing party against whom disbursements may be taxed. Farstveet v. Rudolph, 2000 ND 189 A homestead is abandoned when it is transferred by quit claim deed for no proceeds. Constructive fraudulent transfers are established conclusively when they occur as provided under the Uniform Fraudulent Transfer Act. Schaefer v. Souris River Telecommunications, 2000 ND 187 A stipulation as to foundation does not eliminate a trial court's discretion to reject evidence on grounds of relevance. Allowing a party to read the deposition of an opposing party's witness into evidence is not necessarily an abuse of discretion. Denying a motion for new trial brought on the ground a party abused discovery by failing to provide a document relating to liability is not an abuse of discretion when liability is not at issue in the trial. Schuh v. Weiss, 2000 ND 180 Judgment awarding damages for cost of repair and loss of use and enjoyment of real property is summarily affirmed under N.D.R.App.P. 35.1(a)(2). State v. Loh, 2000 ND 188 An officer has probable cause justifying a vehicle stop, based on evidence of a traffic violation, which is not invalidated when an officer subjectively suspects another offense. Following a vehicle for five miles before initiating an investigatory stop does not invalidate the probable cause justifying the vehicle stop. Syvertson v. State, 2000 ND 185 A request for oral argument is incomplete if the requesting party fails to secure a time for oral argument. A post-conviction relief application is denied if all issues were either fully and fairly determined in a direct appeal or petitioner inexcusably failed to raise them in that appeal. Petitioner for post-conviction relief is not entitled to a new judge upon his application for post- conviction relief.
October 3, 2000
City of Fargo v. Doty, 2000 ND 176 Jury verdict of guilty on the charge of reckless driving summarily affirmed under N.D.R.App.P. 35.1(a)(1), (3), (4), and (7). City of Fargo v. Hersch, 2000 ND 172 Judgment of conviction for driving while under the influence of alcohol is summarily affirmed under N.D.R.App.P. 35.1(a)(2). Coleman v. Goulet, 2000 ND 171 The trial court's summary dismissal of a damage action because the plaintiff did not meet the threshold requirements under the Auto Accident Reparations Act is summarily affirmed under N.D.R.App.P. 35.1(a)(6). Harn v. County of McKenzie, 2000 ND 173 A summary judgment for costs and disbursements and an order denying a motion for new trial in action for conversion and violation of public duty are affirmed under N.D.R.App.P. 35.1(a)(4), (6). Interest of E.T., 2000 ND 174 An appeal of a trial court's involuntary medication order is rendered moot once the patient is released from the hospital and is no longer in need of medication. Rott v. North Dakota Department of Transportation, 2000 ND 175 A statute providing for the cancellation of a minor's driver's license upon accumulation of a point total in excess of five points is not applied retroactively when the offense triggering the cancellation occurs after the effective date of the statute. Enactment of the statute does not change the status of the minor's driver's license so as to require notification of the statute's enactment. State v. Ellis, 2000 ND 177 A defendant who seeks a new trial because voir dire has not been transcribed must first request transcription of the voir dire on the record. Failure to make a request for transcription on the record precludes a defendant from later asserting error. A defendant requesting a change of venue has the burden of showing a reasonable likelihood of prejudice so pervasive that a fair and impartial jury could not be found. Denial of change of venue will not be reversed unless the trial court abused its discretion. State v. Haverluk, 2000 ND 178 A law enforcement officer may conduct a limited search of a vehicle's interior if there is a reasonable suspicion of danger to the officer. A law enforcement officer may search a vehicle's interior incident to a lawful arrest as long as the search is contemporaneous with the arrest. A search incident to arrest is not invalid simply because the search preceded the arrest as long as the arrest quickly followed the search and the fruits of the search were not needed for probable cause to arrest. State v. Mora, 2000 ND 179 A defect in alleging prior convictions in an information is a harmless error when the defendant had actual knowledge of the convictions upon which the State relied to impose the mandatory sentence.