KAT Video Productions, Inc. v. KKCT-FM Radio , 1998 ND 177 To prevail in infringement actions, plaintiffs must prove defendants' use of name and logo creates a likelihood of confusion. The trial court may limit the use of a common English word where it will cause a likelihood of confusion with a protected name.
Keller v. Keller , 1998 ND 179 In considering a custodial parent's request to move a child out-of-state, the court must give appropriate weight to evidence of the advantages, economic and non-economic, of the move to the custodial parent and child. The preference of a mature teenager is a significant factor for the court to consider in determining whether a move is in the child's best interests.
Lawrence v. Delkamp , 1998 ND 178 Under N.D.C.C.14-09-09.10(8) and N.D. Admin. Code 75-02-04.1-01(5), employer-paid benefits which included contributions to a 401(k) plan, medical insurance premiums, dental insurance premiums, life insurance premiums, accidental death and disability insurance premiums, long-term disability insurance premiums, and pension fund contributions were all properly included as gross income for a determination of the employee's child support obligation.
Lindell v. N.D. Workers Compensation Bureau , 1998 ND 174 The disability verification requirements under N.D.C.C. 65-05-08.1(2)(a-d) (1995) apply to a claimant's initial request for disability benefits. A physician's report under N.D.C.C. 65-05-08.1 (1995) includes a physician's formal correspondence with the Bureau, but not attached office notes or medical records.
Nelson v. Nelson , 1998 ND 176 In dividing property of a divorcing couple who had remarried three months after their first divorce, the trial court should consider the totality of the couple's relationship. Questions of property division and spousal support should be examined together, especially where there is a large difference in earning power between the spouses.
Zueger v. N. Dak. Workers Compensation Bureau , 1998 ND 175 A claimant's alleged failure to perform to the full extent of his abilities on a functional capacity evaluation is not a "false statement" under N.D.C.C. 65-05-33.
September 18, 1998
State v. Garrett , 1998 ND 173 Where a law enforcement officer, with plain view of contraband on the front passenger seat of a vehicle in a public parking lot, could lawfully seize contraband on the scene, a subsequent search of the vehicle at the station is reasonable under the Fourth Amendment. A reasonable and articulable suspicion for an investigatory stop can be provided by reports from other officers, tips from informants, and from the stopping officer's own observations.
September 15, 1998
Breding v. State , 1998 ND 170 Defense counsel did not provide ineffective assistance by failing to object to or attack the credibility of a prosecution witness's testimony on the ground the witness had used hypnosis to enhance his recall of events. Trial strategy choices by defense counsel made after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable.
Circle B Enterprises v. Steinke , 1998 ND 164 A contractor who fails to substantially perform a contract cannot recover under the contract for work performed, but may be entitled to recover in quantum meruit if the value of the part performance is not integrated into a valid liquidated damages clause.
Close v. Ebertz , 1998 ND 167 A "family member" of the insured is included within the scope of an automobile insurance policy exclusion of coverage for "any person" using an auto without a reasonable belief the person is entitled to do so.
Dworshak v. Moore , 1998 ND 172 Failure of a police officer to "immediately" issue a temporary operator's permit after taking possession of a person's operator's license for refusing a chemical test under N.D.C.C. 39-20-04(1) is not jurisdictional. Appropriate remedy under N.D.C.C. 39-20-04(1) for delay in receiving a temporary operator's permit is to receive credit for the time in which the person was without an operator's license after the day of the person's refusal to submit to a chemical test.
Eggl v. Fleetguard, Inc. , 1998 ND 166 There is no time limit for attacking a void judgment under N.D.R.Civ.P. 60(b)(iv). Mail service upon a foreign corporation under N.D.R.Civ.P. 4(d)(3)(C) must be addressed to an officer, director, or other responsible person in management. A corporation whose only contact with North Dakota was shipping products into the state for resale by independent retailers was not "transacting business" in the state for purposes of N.D.C.C. 10-22-10.
Haugstad v. Baltrusch , 1998 ND App 7 - Court of Appeals The construction of the language of a written contract to determine the legal effect is a question of law for the court to decide.
Jarvis v. Jarvis , 1998 ND 163 Uninsured medical expenses paid by the obligor are a deduction from gross income when setting the child support amount, consequently they are not part of the child support amount determined by the guidelines. The cost of a child's daycare may justify an increase from the guideline amount of child support. The child support guidelines prohibit a court from considering an obligor's daily living expenses when setting child support.
Kadlec v. Greendale Township Board of Supervisors , 1998 ND 165 A board of township supervisors, not a water resource district, has the authority to install culverts in township roads when necessary to preserve the natural drainage of surface waters. The owner of the lower, or servient, estate must receive surface water from the upper or dominant estate in its natural flow, and 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. Exhaustion of remedies before a writ of mandamus can be issued is not required if exhaustion would be futile or if the case involves only the interpretation of an unambiguous statute.
Kouba v. Febco, Inc. , 1998 ND 171 A nonfinal judgment that can easily be made final can be remanded with instructions to enter final judgment under N.D.R.Civ.P. 54(b), while retaining jurisdiction under N.D.R.App.P. 35(b).
Monson v. Monson , 1998 ND App 9 - Court of Appeals A letter duly directed and mailed is presumed received in the regular course of business. A party's failure to object waives any evidentiary challenges. To apply the child support guidelines, a trial court must determine the child support obligor's net income.
Ohio Casualty Insurance Company v. Horner , 1998 ND 168 Issues which are ordinarily factual in nature may become issues of law for a court to decide if reasonable persons could reach only one conclusion from the facts. Where an intentional act results in injuries which are the natural and probable consequences of the act, the injuries, as well as the act, are intentional. An insured's slingshot shooting of a rollerblader was, as a matter of law, an intentional act under the intentional acts exclusion in an insurance policy.
Paxton v. Wiebe , 1998 ND 169 Where retroactive application of amendments to the North Dakota Rules of Civil Procedure requiring post-judgment motions to be "served and filed" to be timely would be unfair and work an injustice, the supreme court will apply the pre-amendment rule requiring only "service" for the post-judgment motion to be timely. A trial court's determination about whether a conversion has been committed is not clearly erroneous where the landlord made numerous attempts to return the unlawfully evicted tenant's personal property and in no way exercised dominion over the personal property in derogation of the tenant's rights.
Towne v. Dinius , 1998 ND 162 Judgment as a matter of law entered by the trial court summarily affirmed under N.D.R.App.P. 35.1(a)(6).
Wishnatsky v. Huey , 1998 ND App 8 - Court of Appeals An actor is subject to liability to another for battery if he acts intending to cause a harmful or offensive contact with the person of another, or an imminent apprehension of such contact, and an offensive contact with the person of the other results. A bodily contact is offensive if it offends a reasonable sense of personal dignity.