Riemers v. State
, 2008 ND 118,
A district court judgment awarding attorney fees for a prior appeal is summarily affirmed under N.D.R.App.P. 35.1(a)(7).
State v. Mastre
, 2008 ND 121,
A criminal judgment for terrorizing is summarily affirmed under N.D.R.App.P. 35.1(a)(7).
Wheeler v. State
, 2008 ND 109,
750 N.W.2d 446
An applicant for post-conviction relief has the burden of establishing grounds for relief.
A district court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
In a post-conviction proceeding, the district court, for good cause, may grant leave to either party to use the discovery procedures available in criminal or civil proceedings. Discovery procedures may be used only to the extent and in the manner the
court has ordered or to which the parties have agreed.
State v. Hernandez
, 2008 ND 103,
A district court order revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
White v. Altru Health System
, 2008 ND 48,
746 N.W.2d 173
The medical malpractice statute in effect at the time of injury applies.
City of Grand Forks v. Mitchell
, 2008 ND 5,
743 N.W.2d 800
A police officer's stop of a vehicle bearing no license plates with a white 8 « x 11 sheet of paper with a date written in black marker posted in its rear window that the officer did not recognize as an authentic temporary registration certificate
was constitutionally permissible because the officer had reasonable and articulable suspicion of a violation of the motor vehicle registration law.
A police officer's subjective intent is not germane for purposes of the objective inquiry used to determine whether a reasonable and articulable suspicion existed that an individual was violating the law.
Riemers v. State
, 2007 ND App 4,
739 N.W.2d 248
A judgment of dismissal for failure to state a claim upon which relief can be granted will be affirmed by an appellate court if it cannot discern a potential for proof to support the claim.
Under N.D.R.Civ.P. 12(c), if, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under N.D.R.Civ.P. 56.
The court, in deciding a motion for judgment on the pleadings, may consider, in addition to the pleadings, materials embraced by the pleadings and materials that are part of the public record without converting the motion to a summary judgment.
Bienek v. Department of Transportation
, 2007 ND 117,
736 N.W.2d 492
Appellate review of administrative license suspensions is limited to the record before the agency.
On legal questions, such as an interpretation of a statute, an agency's decision is fully reviewable on appeal.
When a general statutory provision is in conflict with a special provision in the same or in another statute, the two must be construed, if possible, so that effect may be given to both provisions. If the conflict between the provisions is
irreconcilable, the special provision prevails and is construed as an exception to the general provision unless the general provision is enacted later and it is the manifest legislative intent that such general provision shall prevail.
The Administrative Agencies Practice Act requires alleged errors from the administrative level be specifically enumerated for the district court.
Moore v. State
, 2007 ND 96,
734 N.W.2d 336
Post-conviction relief may be granted when "[e]vidence, not previously presented and heard, exists requiring vacation of the conviction or sentence in the interest of justice."
When a defendant applies for post-conviction relief to withdraw a guilty plea, the application is treated as one made under N.D.R.Crim.P. 32(d), and withdrawal is allowed when necessary to correct a manifest injustice.
Scheer v. Altru Health System
, 2007 ND 104,
734 N.W.2d 778
A dismissal without prejudice is ordinarily not appealable; however, a dismissal without prejudice may be final and appealable if the plaintiff cannot cure the defect that led to dismissal, or if the dismissal has the practical effect of terminating
the litigation in the plaintiff's chosen forum.
North Dakota's medical malpractice law requires a plaintiff to serve the defendant with an admissible expert affidavit that supports a prima facie case of malpractice within three months of serving the summons.
The trial court may set a later date for serving the affidavit for good cause shown by the plaintiff.
The trial court must dismiss the case without prejudice, on motion by the defendant, for a plaintiff's failure to timely serve the affidavit or move for good cause.
A plaintiff may move for good cause as late as in response to the defendant's motion to dismiss.
Riemers v. State
, 2007 ND App 2,
732 N.W.2d 398
A judge may not be held liable for any judicial act.
Collateral estoppel generally prohibits the relitigation, in a second action, of particular issues of either fact or law which were, or by logical and necessary implication must have been, litigated and determined in the prior suit.
Peoples State Bk. of Truman v. Molstad Excavating
, 2006 ND 183,
721 N.W.2d 43
Part of the law of the case doctrine provides that the orderly functioning of the judicial process requires that judges of coordinate jurisdiction honor one another's orders and revisit them only in special circumstances.
The law of the case is not violated and reconsideration of prior orders is proper if the initial ruling was made on an inadequate record or was designed to be preliminary or tentative.
Construction of a written contract to determine its legal effect is a question of law, and on appeal this Court will independently examine and construe the contract to determine if the trial court erred in its interpretation.
To enforce a contract between two others, a third party must have been intended by the contracting parties to be benefited by the contract.
State v. Wheeler
, 2006 ND 95,
719 N.W.2d 384
Convictions of gross sexual imposition, encouraging the deprivation of a minor, and contributing to the delinquency of a minor are summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (3).
A judgment should accurately reflect the proceedings and under N.D.R.Crim.P. 36, a court may correct a clerical error in a judgment due to oversight.
Nesvig v. Nesvig
, 2006 ND 66,
712 N.W.2d 299
In deciding whether to compel testimony of an unretained expert, the court should consider: whether the expert is being called to testify about facts of the case or to give opinion testimony; the difference between testifying to a previously formed
or expressed opinion and forming a new one; whether the witness is a unique expert; the likelihood a comparable witness will willingly testify; and the degree the witness is oppressed by having to continually testify.
The district court does not abuse its discretion by failing to sequester an expert witness from observing trial testimony where the expert's presence is essential to presentation of the party's cause and no prejudice results.
State v. Nikle
, 2006 ND 25,
708 N.W.2d 867
Great weight is given to a potential juror's claim that he or she will maintain impartiality.
No legal rule is violated if a jury panel is not rejected after one venireperson makes a comment which, though arguably inappropriate, does not affect the fairness or impartiality of any member of the venire.
Assistance of counsel is effective if, despite counsel's "errors," the results of the proceedings would remain unchanged.
State v. Moore
, 2005 ND 183,
709 N.W.2d 21
Trial court's denial of petitioner's motion to withdraw his guilty plea is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
City of Grand Forks v. Lamb
, 2005 ND 103,
697 N.W.2d 362
When a defendant appeals to the district court from a conviction in municipal court, the district court does not review the record and decision of the municipal court, but holds a new trial and independently determines whether the defendant has
violated the ordinance.
A notice of appeal filed after the municipal court has announced its decision, but before the entry of the judgment or order, is treated as filed on the date of and after the entry.
When a city has the authority to regulate a certain subject, an ordinance is presumed valid and the burden is upon the party challenging the ordinance to demonstrate how the city exceeded its authority.
City of Grand Forks v. Barnum
, 2005 ND App 4,
697 N.W.2d 7
For a process to be a necessary part of the approved method, the State Toxicologist must expressly include it in the approved methodology and make it a part of the requirement for fair administration.
Admission of a checklist other than the one generated in the course of administering a breath test is not a foundational requirement for admissibility of the test result generated in a breath test conducted with an Intoxilyzer 5000 KB-EP and printed
on a "Form 106 KB-EP."
Jensen v. State
, 2004 ND 200,
688 N.W.2d 374
In a post-conviction proceeding, a claim is res judicata if it was fully and finally determined in a previous proceeding.
A misuse of process occurs when the applicant presents a claim for relief that the applicant inexcusably failed to raise in prior proceedings, or if the applicant has filed multiple applications containing claims so lacking in factual support or
legal basis as to be frivolous.
Moen v. Thomas
, 2004 ND 132,
682 N.W.2d 738
Although the existence of an attorney-client relationship turns largely on the client's subjective belief it exists, the client's subjective belief must also be objectively reasonable.
A party must specifically request that questions on a special verdict form be submitted to the jury, and vague references to requested instructions or special verdict forms are insufficient to preserve the issue for appeal.
A trial court does not abuse its discretion by refusing to include a requested question in a special verdict form when a party has not presented sufficient evidence to support it.
State v. Provost
, 2004 ND 68,
688 N.W.2d 402
Conviction for simple assault on a peace officer is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).
Nesvig v. Nesvig
, 2004 ND 37,
676 N.W.2d 73
The actual nature of the subject matter of an action determines whether an action is a legal malpractice case.
Good faith is not a defense to a legal malpractice action.
A fiduciary relationship exists when one is under a duty to give advice for the benefit of another upon matters within the scope of the relationship.
An attorney may undertake to manage or invest a client's property, and in doing so, the attorney not only must conform to the applicable standard of care and comply with the fiduciary obligations, but also may assume the responsibilities of a
trustee.
Collette v. Clausen
, 2003 ND 129,
667 N.W.2d 617
A supplier of a chattel can be liable for negligent entrustment if the supplier knows or has reason to know the person who he supplies the chattel to is likely to use the chattel in a manner involving unreasonable risk of physical harm to himself or
others.
A supplier of a chattel has a duty to warn of dangers if the supplier knows or has reason to know the chattel is or is likely to be dangerous for the use for which it is supplied; has no reason to believe those for whose use the chattel is supplied
will realize its dangerous condition; and fails to exercise reasonable care to inform the users of its dangerous condition or of the facts which make it likely to be dangerous.
Cannaday v. Cannaday
, 2003 ND 58,
659 N.W.2d 363
The rules for the division of property are the same in a separation action as in a divorce action, and the division must be an equitable one.
When the provisions of a separation judgment imply that the trial court intended the property division to be final, that judgment is binding upon the parties and it is improper for the court to subsequently alter the property division.
American Ntl. Fire Ins. Co. v. Hughes
, 2003 ND 43,
658 N.W.2d 330
An insurer is precluded from obtaining subrogation from its insured.
For purposes of subrogation, a closely held corporation's officers and employees may be implied co-insureds under a policy insuring the corporation's property.
Berger v. Holt
, 2003 ND 34,
657 N.W.2d 273
A parent's legal obligation to support his or her child continues when the child is placed in foster care.
Jensen v. State
, 2003 ND 28,
660 N.W.2d 232
An order summarily denying an amended application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6).
Grand Forks Professional Baseball, Inc. v. Workers Comp.
, 2002 ND 204,
654 N.W.2d 426
An officer or director of a corporation can be held personally liable for unpaid worker's compensation insurance premiums even though that officer or director does not own stock in the corporation.
Argenziano v. State
, 2002 ND 158,
655 N.W.2d 84
Summary judgment dismissing a breach of contract claim is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (6).
Sjostrand v. ND Workers Comp.
, 2002 ND 125,
649 N.W.2d 537
The Workers Compensation Bureau's termination of an injured worker's disability benefits for a false claim or false statement, without first providing an opportunity for an evidentiary hearing, does not violate the worker's right to due process of
law.
The Bureau's findings on a false claim or false statement must be affirmed if they are supported by a preponderance of the evidence.
Alerus Financial v. Lamb
, 2001 ND 179,
639 N.W.2d 706
Summary judgments granting foreclosure of mortgages on rental properties are summarily affirmed under N.D.R.App.P. 35.1(a)(6).
State v. Jensen
, 2001 ND 117,
636 N.W.2d 674
Criminal convictions for driving under revocation, driving under the influence, and false report to law enforcement summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).
Moen v. Thomas
, 2001 ND 110,
628 N.W.2d 325
The existence of an attorney-client relationship is ordinarily a question of fact.
Moen v. Thomas
, 2001 ND 95,
627 N.W.2d 146
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.
Praus v. Mack
, 2001 ND 80,
626 N.W.2d 239
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.
Interest of S.J.F.
, 2000 ND 158,
615 N.W.2d 533
Interpretation of a judgment is a question of law, and a judgment should be construed to give effect to each and every part of it.
Once an appellate court has finally determined a legal question and remanded the cause for further proceedings, its decision becomes the law of the case and will not be differently decided on a subsequent appeal in the same case.
The determination of back child support in a paternity action lies within the trial court's discretion, and its decision will be reversed on appeal only for an abuse of discretion.
State v. Jensen
, 2000 ND 28,
606 N.W.2d 507
Under N.D.R.Ev. 412, evidence that an alleged victim of sexual misconduct engaged in other sexual behavior or evidence of the victim's sexual predisposition is generally inadmissible.
A party must file a written motion under the rule requesting the court to admit specific instances of sexual behavior between the alleged victim and the accused, and failure to make a timely motion is reason alone for the court to deny admissibility
of the evidence.
Henry v. Henry
, 2000 ND 10,
604 N.W.2d 234
Under N.D. Admin. Code 75-02-04.1-07(3), a monthly gross income based on earning capacity equal to the greatest of three methods of calculation must be imputed to a child support obligor who is unemployed or underemployed.
Schanilec v. Grand Forks Clinic, Ltd.
, 1999 ND 165,
599 N.W.2d 253
The two-year statute of limitations for bringing a medical malpractice action does not begin to run in a misdiagnosis case until the plaintiff knows, or with reasonable diligence should know, of the injury, its cause, and the defendant's possible
negligence.
Ohio Casualty Ins. Co. v. Horner
, 1998 ND 168,
583 N.W.2d 804
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.
Interest of S.J.F.
, 1998 ND App 4,
582 N.W.2d 382
A statement that evidence is insufficient is not a finding of
fact made from the evidence, but is a general assessment or
evaluation of the evidence.
A trial court can order genetic testing in a paternity action
without a request from either party.
Henry v. Henry
, 1998 ND 141,
581 N.W.2d 921
A presumed father's request for genetic paternity testing must be
made
by a motion to the trial court.
Trial court's imputation of income to an underemployed obligor is
not
clearly erroneous when supported by evidence of earnings by
others in the
community with the same skills and experience.
Accumulation of child support in arrears is appropriate where the
obligor has temporarily and voluntarily reduced his income while
attending
graduate school.
Nesseth v. Omlid
, 1998 ND 51,
574 N.W.2d 848
Failure to object or request a curative instruction to improper
arguments forfeits the right to raise the issue on appeal.
A trial court has an independent duty to intervene if improper
comments affect a litigant's substantial rights.
A trial court's denial of a new trial on damages is not an abuse
of discretion where the jury's award is supported by sufficient
evidence.
A trial court must make a clear statement of the reasons for a
denial of a new trial.
Morton v. Fladeland
, 1998 ND 1,
576 N.W.2d 524
Trial court's judgment in an automobile accident case summarily
affirmed under N.D.R.App.P. 35.1.
State v. Brossart
, 1997 ND 119,
565 N.W.2d 752
A farmer who plows an unimproved section line does not violate
the criminal statute prohibiting section line plowing, unless it
obstructs usual travel.
A trial court should normally instruct a jury only on the
specific offense charged that is supported by the evidence.
Interest of J.C.S.
, 1997 ND 126,
565 N.W.2d 759
Sufficient evidence existed to find juvenile committed conspiracy
to commit unlawful entry into or concealment within a motor
vehicle.
Pear v. Grand Forks Motel Associates
,
553 N.W.2d 774 (N.D. 1996)
The parol evidence rule precluded consideration of oral
negotiations to show that loans by the partners were actually
contributions of capital, where the written partnership
agreements and promissory notes from the partnership to partners
were clear and unambiguous. A debtor who signs a renewal
note indicating he owes a past debt waives any statute of
limitations defense he may have had and the statute begins to
run anew from the date of the renewal note.
Wyatt v. Adams
,
551 N.W.2d 775 (N.D. 1996)
The trial court's certification of the dismissal of a
defendant as an appealable final order under
Rule 54(b), N.D.R.Civ.P., was improvidently granted because
the need for review could be
mooted by future developments in the district court.
State v. Smaage
,
547 N.W.2d 916 (N.D. 1996)
Isaac v. State Farm Mutual Automobile Ins. Co.
,
547 N.W.2d 548 (N.D. 1996)
Medd v. Fonder
,
543 N.W.2d 483 (N.D. 1996)
Oliver v. City of Larimore
,
540 N.W.2d 630 (N.D. 1995)
State v. Chihanski
,
540 N.W.2d 621 (N.D. 1995)
State v. Schindele
,
540 N.W.2d 139 (N.D. 1995)
Bakes v. Bakes
,
532 N.W.2d 666 (N.D. 1995)
Conservatorship of Sickles
,
518 N.W.2d 673 (N.D. 1994)
City of Grand Forks v. Mata
,
517 N.W.2d 626 (N.D. 1994)
State v. Murphy
,
516 N.W.2d 285 (N.D. 1994)
City of Grand Forks v. Risser
,
512 N.W.2d 462 (N.D. 1994)
Estate of Johnson
,
501 N.W.2d 342 (N.D. 1993)
Conservatorship of Kinney
,
495 N.W.2d 69 (N.D. 1993)
State v. Keegan
,
493 N.W.2d 219 (N.D. 1992)
State v. Messner
,
481 N.W.2d 236 (N.D. 1992)