Heyen v. State
, 2008 ND 45,
747 N.W.2d 136
A district court order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
State v. Hurt
, 2007 ND 192,
743 N.W.2d 102
In a review of a district court's decision to grant or deny a motion to suppress, the district court's findings of fact are given deference, and conflicts in testimony are resolved in favor of affirmance.
One exception to the warrant requirement is voluntary consent by the individual whose property is searched, or by a third party who possesses common authority over the premises.
The Fourth Amendment does not require law enforcement to provide co-occupants opportunity to assert their Fourth Amendment rights at the door; rather, the protections provide that a physically present co-occupant, who expressly refuses to permit the
search despite the consent of his fellow occupant, renders the warrantless search unreasonable as to him.
The co-occupant who is not present at the door and does not refuse the search at the time his fellow occupant provides consent "loses out" on his opportunity to exclude evidence gathered in a common-area, co-occupant consent search.
State v. Gandesbery
, 2007 ND 187,
742 N.W.2d 839
Order revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
State v. Tassler
, 2007 ND 153,
742 N.W.2d 839
Revocation of probation and sentence is summarily affirmed under N.D.R.App.P. 35.1(a)(4).
State v. Vantreece
, 2007 ND 126,
736 N.W.2d 428
Under N.D.C.C. 12.1-20-03(1)(a), the State must prove beyond a reasonable doubt the defendant, by force or threat of death or serious harm, compelled the victim to submit to a sexual act.
In a criminal case charging the defendant with having sex by force, the complainant's mental capacity is relevant to the question of the extent of force required to compel the victim to submit.
State v. Albaugh
, 2007 ND 86,
732 N.W.2d 712
An expectation of privacy in commercial property where the public is apparently welcome is different from, and less than, a similar expectation in an individual's home.
Plain view is a recognized exception to the search warrant requirement, which allows law enforcement to seize a clearly incriminating object without a warrant if the officers are lawfully in a position from which they view an object and the object's
incriminating character is immediately apparent.
A search incident to an arrest is a recognized exception to the search warrant requirement, which allows an arresting officer to lawfully search the area within the arrestee's immediate control.
Consent is a recognized exception to the search warrant requirement, so long as the consent is given freely and voluntarily, without any threats or promises having been made.
WFND, LLC v. Fargo Marc, LLC
, 2007 ND 67,
730 N.W.2d 841
A motion to amend a complaint under N.D.R.Civ.P. 15(a) and a motion for voluntary dismissal under N.D.R.Civ.P. 41(a)(2) lie within the sound discretion of the district court and will not be reversed on appeal absent an abuse of discretion.
A breach of contract is the nonperformance of a contractual duty when it is due, and the burden of proving the elements of a breach of contract is on the party asserting the breach.
Mixing principles of tort and contract law and using tort terminology to describe a breach of contract is improper.
Fraud applies when there is a contract between the parties and deceit applies when there is no contract between the parties.
An intent to defraud usually is not susceptible of direct proof, and can be established by circumstantial evidence.
The award of damages will be sustained on appeal if it is within the range of the evidence presented to the trier of fact.
A district court is not required to accept the undisputed testimony of an expert witness.
A written contract may be modified by an executed oral agreement.
The parol evidence rule does not preclude proof of the existence of a separate oral stipulation or agreement concerning any matter on which the written contract is silent, and which is not inconsistent with its terms.
Successful litigants are not allowed to recover attorney fees unless authorized by statute or by contract.
When opposing parties each prevail on some of their claims, there is no single prevailing party for whom disbursements may be taxed.
Disbursements listed in N.D.C.C. 28-26-06 may be awarded as discretionary costs under N.D.C.C. 28-26-10.
Gisvold v. Windbreak Inc.
, 2007 ND 54,
730 N.W.2d 597
In considering a motion for a new trial based on insufficiency of the evidence, a district court may not substitute its own judgment for that of the jury, or act as a thirteenth juror when the evidence is such that different persons would naturally
and fairly come to different conclusions; rather, a district court may set aside a jury verdict when, in considering all the evidence, the court's judgment tells it the verdict is wrong because it is manifestly against the weight of the evidence.
A district court's decision on a motion for a new trial must concisely state the grounds on which the ruling is based.
Estate of Carlson
, 2007 ND 35,
728 N.W.2d 337
A North Dakota court has no subject matter jurisdiction to grant or deny a motion to substitute a party in an action or proceeding in another state.
Under the Uniform Probate Code, no presentation of claim is required in regard to matters claimed in proceedings against a decedent that were pending at the time of death.
Under the Uniform Probate Code, a judgment in a proceeding in another court against a personal representative to enforce a claim against a decedent's estate is an allowance of the claim in a North Dakota probate proceeding.
State v. Bates
, 2007 ND 15,
726 N.W.2d 595
After a guilty plea is accepted, but before sentencing, the defendant may withdraw a guilty plea if necessary to correct a manifest injustice, or, if allowed in the court's discretion, for any "fair and just" reason unless the prosecution has been
prejudiced by reliance on the plea.
A factual basis is a statement of facts to assure the defendant is guilty of the crime charged.
A court may determine a sufficient factual basis in one of three ways: (1) the court could inquire directly of the defendant concerning the performance of the acts which constituted the crime; (2) the court could allow the defendant to describe to
the court in his own words what had occurred and then the court could question the defendant; and (3) the court could have the prosecutor make an offer of proof concerning the factual basis for the charge.
When a claim for ineffective assistance of counsel is argued on direct appeal, we review the record to decide if the assistance of counsel is plainly defective. Unless the record affirmatively shows ineffectiveness of constitutional dimensions, the
complaining party must show some evidence in the record to support the claim.
Ungar v. ND State University
, 2006 ND 185,
721 N.W.2d 16
Res judicata, or claim preclusion, prevents the relitigation of claims that were raised, or could have been raised, in prior actions between the same parties or their privies resulting final judgment from a court of competent jurisdiction.
Collateral estoppel, or issue preclusion, forecloses relitigation of issues of either fact or law in a second action based on a different claim, which were necessarily litigated, or must have been litigated, and decided in the prior action.
For the district court to have subject-matter jurisdiction over a university professor's claims against the university, the plaintiff must comply with the statutory notice of claim requirements and exhaust the internal administrative remedies.
Choice Financial Group v. Schellpfeffer
, 2006 ND 87,
712 N.W.2d 855
Summary judgment is appropriate only after the non-moving party has had a reasonable opportunity for discovery to develop his position.
Failure to comply with the affidavit requirement of Rule 56(f), N.D.R.Civ.P., is not fatal to a request for additional discovery before a summary judgment motion is decided.
The party seeking additional discovery must identify with specificity what information is sought; how, if uncovered, it would preclude summary judgment; and why it has not previously been obtained.
Murphy v. State
, 2006 ND 80,
719 N.W.2d 384
Denial of an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Thomas v. Stone
, 2006 ND 59,
711 N.W.2d 199
An insured's authority to designate beneficiaries in a life insurance policy may be limited by an agreement or judgment.
Wild Rice River Estates v. City of Fargo
, 2005 ND 193,
705 N.W.2d 850
Whether there has been a taking of private property for public use is a question of law which is fully reviewable on appeal, but a trial court's findings of fact on a takings claim will not be set aside unless they are clearly erroneous.
A temporary deprivation of all economically viable use of property does not necessarily constitute a taking of property requiring compensation.
An extraordinary delay in governmental decisionmaking coupled with bad faith on the part of the governmental body may result in a compensable taking of property.
Interest of L.J.
, 2005 ND 182,
709 N.W.2d 21
An order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
Guardianship/Conservatorship of Onstad
, 2005 ND 158,
704 N.W.2d 554
While N.D.R.Civ.P. 60(b) ordinarily may not be used as a substitute for an appeal or to relieve a party from deliberate choices, in unusual cases a party who has not taken an appeal may obtain relief on a 60(b) motion.
A successor judge should respect the law of the case.
Syvertson v. State
, 2005 ND 128,
699 N.W.2d 855
When establishing a Brady violation, the knowledge of the North Dakota State Hospital is not imputed to the State's Attorney's Office.
Information publicly disseminated in a newspaper article is not newly discovered evidence.
Interest of K.N.H.
, 2005 ND App 9,
704 N.W.2d 573
A juvenile court order terminating a father's parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Johnson v. Nodak Mutual Ins. Co.
, 2005 ND 112,
699 N.W.2d 45
An insurer's payment for an insured's independent medical examination is not a no-fault benefit for purposes of a statute of limitations that requires actions for further benefits to begin no later than four years after the last payment of
benefits.
A motion for relief from a judgment may not be used to provide a litigant with a second chance to present new legal theories to a court.
Estate of Kimbrell
, 2005 ND 107,
697 N.W.2d 315
The surviving spouse of a decedent occupying real property as a homestead receives the right to possession, use, control, income, and rents of the property for life or until the surviving spouse again marries, limited in size and value to the land
and the dwelling house, with all its appurtenances and other improvements, not to exceed $80,000 in value, over and above liens and encumbrances.
Choice Financial Group v. Schellpfeffer
, 2005 ND 90,
696 N.W.2d 504
Where partial summary judgment is rendered for only part of the damages sought by the plaintiff and consideration of further damages is reserved for a later date, the judgment is neither final nor on an entire claim, and there can be no certification
of the partial summary judgment as final under N.D.R.Civ.P. 54(b).
ND Human Rights Coalition v. Bertsch
, 2005 ND 98,
697 N.W.2d 1
A trial court's decision to certify a class action will not be overturned on appeal unless the court abused its discretion.
A trial court's explanation of its decision to grant a class action certification must be sufficient to enable a reviewing court to understand the basis for the court's decision.
Ernst v. Tjon
, 2005 ND App 1,
704 N.W.2d 574
A summary judgment dismissing a defamation and libel action is summarily affirmed under N.D.R.App.P. 35.1(a)(6).