Cermak v. Cermak , 1997 ND 187 - Civil No. 970046 A recipient spouse's unmarried cohabitation is not a remarriage and is insufficient, alone, to terminate a permanent spousal support obligation. The district court's finding that a reduction of spousal support is not warranted because nothing has changed since the original decree is not clearly erroneous. The district court did not abuse its discretion in refusing to award attorney's fees.
City of Medora v. Golberg, et al. , 1997 ND 190 - Civil No. 970066 A municipality did not abuse its discretion in deciding the taking of easements for a public roadway and for utilities, sewage, water, and cable television were necessary for a valid public purpose. In an eminent domain action, the trial court misapplied the law in failing to follow the lodestar procedure for awarding attorney's fees and in awarding attorney's fees proportionate to the damages awarded.
Fuhrman v. N.D. Workers Compensation Bureau , 1997 ND 191 - Civil No. 970094 A claimant for workers compensation benefits has good cause for failing to attend a rehabilitation program if the claimant has a reason that would cause a reasonably prudent person to refuse to attend the program under the same or similar circumstances. A claimant who asserted financial inability to relocate for training in Minneapolis had good cause for not attending the training program approved by the Bureau, which made no investigation of the claimant's economic circumstances prior to terminating benefits.
Glander v. Glander , 1997 ND 192 - Civil No. 970053 Decreed equal division of property between former spouses was not erroneous where the property came from comparable inheritences from each spouse's family and had comparably been used for household expenses throughout a forty-year marriage. Decreed spousal support was satisfactorily explained by trial court's findings that a spouse was disadvantaged, could not be rehabilitated, and was in need of support equivalent to half of the spouse's current income.
Hurt, et al. v. Freeland, et al. , 1997 ND 194 - Civil No. 970119 The trial court's summary judgment dismissing some but not all of the defendants is not appealable without certification under Rule 54(b), NDRCivP. Sanctions were assessed against attorney under Rule 13, NDRAppP, for failure to comply with the rules governing preparations of the appendix on appeal.
Kryzsko v. Kryzsko , 1997 ND 186 - Civil No. 960389 District court's divorce judgment including determination of property division and child support summarily affirmed under N.D.R.App.P. 35.1(a)(2).
State v. Hart , 1997 ND 188 - Criminal No. 960370 A pro se criminal defendant who acquiesced in standby counsel's participation at trial was not denied his Sixth Amendment right to self-representation. In an attempted murder trial, the trial court did not abuse its discretion in excluding some evidence about an alleged business relationship between the defendant and the victim. The trial court committed harmless error in excluding on the ground of hearsay the defendant's testimony about an unavailable declarant's statement which was offered to show the defendant's state of mind and not the truth of the matter asserted.
State v. Leppert , 1997 ND 184 - Criminal No. 970040 Summarily affirmed Judgments of Conviction of the crime of felonious restraint under Rule 35.1(a)(2), N.D.R.App.P.
State v. Novak , 1997 ND 183 - Criminal No. 970083 Summarily affirmed conviction for delivery of an alcoholic beverage to a person under 21 years of age under Rule 35.1(a) (3), NDRAppP.
State v. Rieger , 1997 ND 189 - Criminal No. 970063 Convictions of issuing checks without sufficient funds summarily affirmed under N.D.R.App.P. 35.1(a)(1).
Wheeling v. Director, N.D. Dep't of Transportation , 1997 ND 193 - Civil No. 970104 A traffic violation observed prior to a checkpoint provides a proper basis for a stop without addressing the validity of the checkpoint.
Zimmerman v. Zimmerman , 1997 ND 182 - Civil No. 970057 In deciding custody in a divorce action, the trial court must make detailed specific findings about domestic violence when there is evidence of it and must compare the violence or abuse committed by each parent when there is evidence of such conduct by both parents.
Ehrman v. Feist , 1997 ND 180 - Civil No. 960392 A lease will ordinarily be construed most strongly against the lessor. When parties to a land sale agreement have agreed to agree on a price, a court can fix a reasonable price. If a party takes possession of real property pursuant to an oral sale contract and makes substantial permanent improvements to the property in reliance upon that oral contract, NDCC 47-10-01 does not bar specific performances of the contract. Part performance consistent only with the existence of an oral contract removes the contract from the statute of frauds. Provisions for the renewal of a lease at a rental to be fixed by subsequent agreement of the parties may be enforced by allowing the courts to determine a reasonable rental amount, pursuant to NDCC 9-05-07. Absent a countervailing statutory authorization, the "American Rule" generally assumes that each party to a lawsuit bears its own attorney fees. A finding of oppression, fraud, or malice is a prerequisite to an award of punitive damages.
Johnson Farms v. McEnroe , 1997 ND 179 - Civil No. 970045 Summary judgment was inappropriate because the appellant raised genuine issues of material fact that there was an oral contract for the sale of land and that there had been partial performance of the contract to remove it from the statute of frauds. The appellant's request for additional discovery under N.D.R.Civ.P. 56(f), although presented in a trial court brief instead of in affidavit form, was sufficient to put the trial court on notice the appellant needed more time for discovery, and the court erred in ignoring the request before ruling on the summary judgment motion.
Lende v. N.D. Workers Compensation Bureau , 1997 ND 178 - Civil No. 960149 N.D.C.C. 28-32-14(4) and 28-32-15(1) govern petitions for reconsideration of an order denying permanent partial impairment benefits. The Workers Compensation Bureau must take some affirmative action toward the arrangement of a formal hearing within thirty days of the filing of the petition for reconsideration under sections 28-32-14(4) and 28-32-15(1), or the order will become final and appealable. The Administrative Agencies Practice Act does not require the filing of a petition for reconsideration as a prerequisite for an appeal to district court under N.D.C.C. 28-32-14(4). The triggering event to start the thirty-day appeal period running under N.D.C.C. 28-32-15(1) is service of a "notice" of a final determination upon reconsideration.
September 8, 1997
Feist v. N.D. Workers Compensation Bureau , 1997 ND 177 - Civil No. 960382 The administrative law judge's decision in this case was a recommendation and was not a final order. NDCC 28-32-13(3) authorizes, but does not require, the Workers Compensation Bureau to adopt rules for review of a hearing officer's recommendation. If an administrative agency rejects a hearing officer's recommendation, it must explain its rationale for not following the recommendation. Because AMA Guides to the Evaluation of Permanent Impairment (3rd ed.) was the edition in existence when NDCC 65-05-12 was amended and reenacted in 1989, the Bureau properly applied it when the claimant's impairment was evaluated in 1994. The Bureau was authorized to combine the impairment ratings for the claimant's lumbar and cervical impairments.
Fisher v. Fisher , 1997 ND 176 - Civil No. 960211 A trial court ordinarily should not apply a discount to a minority stock interest when it determines "fair value" for a minority shareholder under the North Dakota Business Corporation Act. In distributing marital property, a trial court should disentangle ownership of a corporation by contentious spouses, if possible.
Hieb v. Hieb , 1997 ND 171 - Civil No. 960323 The Child Support Guidelines require deduction of business expenses, such as meal expenses according to I.R.S. terminology, to determine adjusted gross income for self-employment. Meal expenses not allowed as a deduction for taxation purposes and not proven as actual business travel expenditures cannot be deducted from adjusted gross income to arrive at self-employment net income.
Jones v. Billings County School District #1 , 1997 ND 173 - Civil No. 970028 Where articles dissolving a corporation are filed before expiration of the two-year period for filing claims under N.D.C.C. 10-19.1-110(3)(a), a claimant may pursue its claim against the dissolved corporation within that two-year period. Under these circumstances, assets of the dissolved corporation distributed to shareholders are subject to a constructive trust in favor of the corporation's creditors.
Long v. Samson, et al. , 1997 ND 174 - Civil No. 970006 A nontenured probationary professor's failure to exhaust administrative remedies at UND precludes him from bringing contract and tort claims arising from the nonrenewal of his employment relationship with UND.
State v. Hage , 1997 ND 175 - Criminal No. 970036 Whether probable cause exists to support the issuance of a search warrant for the defendant's person and premises is reviewed using the "totality of the circumstances" approach. There is a substantial basis for the issuing magistrate's determination of probable cause based upon the circumstantial evidence presented to the magistrate.
State v. Osier , 1997 ND 170 - Criminal No. 960346 In a criminal prosecution for sexual contact with a minor under 15 years of age, the trial court committed reversible error in admitting, under Rule 404(b), N.D.R.Ev., a prior act of sexual fondling of a minor by the defendant, where the evidence was not relevant to motive, scheme, plan, or any other exception under the rule, but served the sole purpose of demonstrating the defendant's propensity for unlawful criminal conduct.
Thompson v. City of Watford City , 1997 ND 172 - Civil No. 960335 An employer need not accommodate an employee's disability if the employee can perform the job adequately without accommodations. An employer cannot be responsible for failing to accommodate an employee's disability if it is not made aware of the need for accommodations. An employer need not accommodate misconduct by a disabled employee.