Gail H. Hagerty

Carroll v. N.D. Workforce Safety & Insurance , 2008 ND 139, 752 N.W.2d 188
For the district court to acquire subject matter jurisdiction over an appeal from a decision of an administrative agency, the appellant must satisfy the statutory requirements for perfecting the appeal.
A workers compensation claimant disputing a managed care decision must appeal from a binding dispute resolution decision, and the decision is reviewable only if the employee has been denied medical treatment.
Lagerquist v. Stergo , 752 N.W.2d 168 (N.D. 2008)
Agency is generally a question of fact.
Agency is never presumed, and if an agency relationship is denied, the party alleging agency must establish it by clear and convincing evidence.
On appeal, a finding of agency is reviewed under the clearly erroneous standard.
An agency relationship is created when one person, called the principal, authorizes another, called the agent, to act for the principal in dealing with third persons. Agency is either actual or ostensible.
Agency cannot be proved by showing the declarations of the alleged agent.
Grosgebauer v. N.D. Dept. of Transportation , 2008 ND 75, 747 N.W.2d 510
Whether a driver affirmatively refused to submit to alcohol testing is a determination of fact that is significantly reliant on the credibility of witnesses.
To cure a refusal to submit to alcohol testing, the consent to submit to testing must be clearly articulated and meet other criteria.
Interest of R.P. , 2008 ND 39, 745 N.W.2d 642
Juveniles have a statutory right to a reasonable opportunity to consult with a parent, guardian, custodian, or legal counsel before submitting to chemical testing when providing the opportunity to consult does not materially interfere with administration of the chemical test.
A totality of the circumstances test applies to determine the reasonableness of a juvenile's opportunity to consult with his or her counsel, parent, guardian, or custodian before submitting to chemical testing.
Nagel v. Workforce Safety and Ins. , 2007 ND 202, 743 N.W.2d 112
Equitable estoppel may be applied to bar an assertion that a claim was untimely under N.D.C.C. 65-05-01.
In certain situations, such as a relapse of a condition caused by a work-related injury, the disallowance of a workers compensation claim following relapse may be a notifying event which ends the tolling of the statute of limitations for the injured worker.
Rodenbiker v. Workforce Safety and Insurance , 2007 ND 169, 740 N.W.2d 831
Section 65-05-10, N.D.C.C., does not provide for an award of partial disability benefits when an injured worker cannot be returned to substantial gainful employment as defined under N.D.C.C. 65-05.1-01(3), and does not have a retained earnings capacity to meet the income test of N.D.C.C. 65-05.1-01(6)(a)(3).
The purpose of partial disability benefits is to assist individuals who can be returned to substantial gainful employment through rehabilitation, but will experience a decrease in earnings capacity upon return to the workforce.
Partial disability benefits are for individuals who can return to substantial gainful employment, but at a lesser amount of income.
Kienzle v. Yantzer , 2007 ND 167, 740 N.W.2d 393
When a stipulation is incorporated into a judgment, the judgment is interpreted and enforced, not the underlying contract.
A district court's interpretation of its own judgment is entitled to deference when the language of the judgment is ambiguous.
A district court's decision whether to allow a custodial parent to relocate out of state with the child is a finding of fact, and will not be overturned on appeal unless clearly erroneous.
Deraas v. Workforce Safety and Insurance , 2007 ND 70, 734 N.W.2d 342
District court judgment affirming a Workforce Safety & Insurance order is summarily affirmed under N.D.R.App.P. 35.1(a)(5).
Gilbert v. Gilbert , 2007 ND 66, 730 N.W.2d 833
A custodial parent seeking to change the residence of a child to another state has the burden to prove, by a preponderance of the evidence, that the move is in the child's best interest.
It is reversible error for a court to fail to give sufficient credence to the importance of keeping the custodial family intact when deciding whether to allow a custodial parent to relocate with the child to another state.
Gonzales v. Witzke , 2007 ND 34, 729 N.W.2d 334
A disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(1).
Wishek v. Kaseman , 2006 ND 232, 725 N.W.2d 588
A judgment granting summary judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(6).
Rojas v. Workforce Safety and Ins. , 2006 ND 221, 723 N.W.2d 403
An injured employee is entitled to an award of reasonable attorney's fees when Workforce Safety and Insurance acts without substantial justification in reducing or denying the employee's benefits.
Interest of B.L.S. , 2006 ND 218, 723 N.W.2d 395
After a request to treat with medication has been made, an independent physician or psychiatrist must certify that the proposed treatment is clinically appropriate and necessary, that the patient was offered the treatment and refused it, that the prescribed medication is the least restrictive form necessary to meet the patient's needs, and that the benefits of treatment outweigh the known risks.
Mental health respondents are entitled to adequate notice and the opportunity to prepare to address the involuntary treatment with medication.
A district court cannot order medications which have not been noticed in the request to treat with medication and have not been certified as clinically appropriate and necessary by a second physician or psychiatrist.
The involuntary treatment with medication is not limited to psychotropic medications used to treat mental illness.
Sandberg v. American Family Ins. , 2006 ND 198, 722 N.W.2d 359
The requirements of a statute may become part of an insurance policy.
An insured's unauthorized settlement with Workforce Safety and Insurance does not adversely affect an insurer, because the settlement does not affect the insurer's right to a reduction in damages payable to the insured for uninsured motorist coverage by the amount paid or payable for workers' compensation benefits.
An amount is payable for workers' compensation benefits if it would have been paid to the workers' compensation claimant.
Bank Center First, Bismarck, ND v. R.C. Transport LLC , 2006 ND 110, 714 N.W.2d 816
Filing a money judgment in a county where the judgment debtor has an interest in real property is a lien on the judgment debtor's interest in the real property.
The 60-day limit for redeeming from a prior redemptioner begins to run when the prior redemptioner's written notice of redemption is filed with the office of the county recorder.
To redeem property, a redemptioner need pay only the purchase price with interest, plus amounts which have been paid to protect the premises.
City of Bismarck v. Mariner Construction, Inc. , 2006 ND 108, 714 N.W.2d 484
The interpretation of a written contract to determine its legal effect is a question of law, and a court must initially determine if the contract is ambiguous.
If a contract is unambiguous, the court interprets the meaning of the contract as a matter of law and the trier of fact determines if the contract, as construed by the court, has been breached.
If a contract is ambiguous, the trier of fact may consider extrinsic evidence about the parties' intent to determine the meaning of the contract and the trier of fact then decides whether the parties have breached the contract.
If a contract is uncertain, the language of the contract is interpreted most strongly against the party who caused the uncertainty; however, for contracts between a public entity and a private party, it is presumed the uncertainty was caused by the private party.
State ex rel. Stenehjem v. FreeEats.com, Inc. , 2006 ND 84, 712 N.W.2d 828
Preemption of state law is not favored, and the framework for analyzing a preemption claim under the Supremacy Clause begins with the basic assumption that Congress did not intend to displace state law.
A state's police power encompasses the duty to protect the privacy of its citizens, including the authority to protect the peaceful enjoyment of the home and the well-being and tranquility of the community.
The statutory language of the Telephone Consumer Protection Act of 1991 clearly expresses Congress' intent that the Act was not meant to occupy the field within its subject matter.
The Telephone Consumer Protection Act does not preempt a state law which prohibits telemarketing calls using automatic telephone dialing systems or artificial or prerecorded voice messages.
Hopfauf v. Hieb , 2006 ND 72, 712 N.W.2d 333
Summary judgment is properly granted if the information available to the trial court precluded the existence of a genuine issue of material fact, entitling the moving party to summary judgment as a matter of law.
A district court's denial of a request for additional time for discovery under N.D.R.Civ.P. 56(f) is not overturned on appeal absent an abuse of discretion.
An element of negligent failure to obtain informed consent, as in any negligence action, is the existence and extent of a duty. A duty to disclose can only arise if the physician knew or should have known of the risks to be disclosed.
Thompson v. Workforce Safety and Insurance , 2006 ND 69, 712 N.W.2d 309
When reviewing the decision of an administrative agency, courts do not make independent findings of fact or substitute their judgment for that of the agency, but determine whether a reasoning mind could reasonably have determined that the factual conclusions reached were supported by the weight of the record.
If the decision of the administrative agency was consistent with the opinion of the sole testifying physician, the agency's decision was supported by the weight of the record.
Fischer v. Berger , 2006 ND 48, 710 N.W.2d 886
A use of land creates an easement by prescription if the use is adverse, continuous and uninterrupted, and for the 20-year period of prescription.
The doctrine of acquiescence does not apply to a claim for an easement by prescription for a road across another's property.
Rojas v. Workforce Safety and Insurance , 2005 ND 147, 703 N.W.2d 299
Before a claimant's continuing workers compensation disability benefits may be terminated, WSI must provide pretermination notice of the contemplated action, a summary of the evidence supporting termination, and a meaningful pretermination opportunity to respond in writing to the alleged grounds for termination.
A notice of intent to discontinue benefits and of the claimant's opportunity to respond sent to the claimant by regular mail is insufficient to guarantee due process when the presumption of receipt under N.D.C.C. 31-11-03(24) has been rebutted and it is determined the claimant never received the notice.
CybrCollect, Inc. v. ND Dept. of Financial Institutions , 2005 ND 146, 703 N.W.2d 285
Consumer electronic fund transactions in North Dakota are subject to the Electronic Fund Transfer Act and Regulation E, which was issued by the Federal Reserve Board to carry out the purpose of the Act.
An administrative hearing may not be held unless the parties have been served with a written specification of issues for hearing or other document indicating the issues to be considered and determined at the hearing. Basic notions of fundamental fairness dictate a person challenging an agency action must be adequately informed in advance of the questions to be addressed at the hearing so the person can be prepared to present evidence and arguments on those questions.
GO Committee v. City of Minot , 2005 ND 136, 701 N.W.2d 865
The judiciary's role in reviewing a municipality's interpretation and application of a municipal ordinance is limited by the doctrine of separation of powers to determining whether the municipality clearly abused its discretion.
Ordinances are interpreted like statutes.
Statutory interpretation is a question of law subject to full review upon appeal.
State v. Barth , 2005 ND 134, 702 N.W.2d 1
Persistent use of profane and threatening language combined with threatening hand gestures is not constitutionally protected free speech under the First Amendment to the U.S. Constitution.
When reviewing challenges to sufficiency of the evidence, the reviewing court examines the record to determine whether there is competent evidence that allowed the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.
A conviction rests upon insufficient evidence only when no rational fact finder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor.
Guardianship/Conservatorship of Van Sickle , 2005 ND 69, 694 N.W.2d 212
The Supreme Court will determine a moot issue if the matter is capable of repetition, yet evading review.
A person has no right to demand to appear in a court proceeding and testify by telephone.
A guardian may place a ward in a locked and secured unit of a basic care facility without first obtaining a court order.
The party proposing the transfer of a ward to a more restrictive living arrangement has the burden of proving by clear and convincing evidence that the proposed placement is the least restrictive alternative available.
A district court has discretion over the order in which evidence is presented.
The best interest of a ward is served by appointing a non-family member as guardian when family members are unable to get along with each other.
A district court does not abuse its discretion in denying a motion for new trial when the alleged error is raised for the first time in the motion for new trial and the alleged error could have been raised during the actual trial.
State v. Tupa , 2005 ND 25, 691 N.W.2d 579
A criminal restitution award can be based on replacement costs where, for example, a victim must replace an item not readily or desirably found in a secondary market.
Fair market value or cost to repair are appropriate measures of criminal restitution if they make a victim whole, such as where a damaged or destroyed item can be cost-effectively repaired or where a viable and appropriate secondary market exists.
A trial court has wide discretion in setting the amount of restitution, and the trial judge does not abuse this discretion by awarding restitution that is within the range of reasonableness.
North Dakota law does not limit criminal restitution to those amounts that would be recoverable in a corresponding civil tort action.
Restitution payments are based on what a defendant can or will be able to pay, and the trial court does not abuse its discretion, or threaten a victim's reimbursement, by ordering payments that are within the defendant's capabilities, even if the obligation may necessitate a change in the defendant's lifestyle.
Spectrum Care, L.L.C. v. Workforce Safety and Insurance , 2004 ND 229, 690 N.W.2d 233
Section 65-04-32, N.D.C.C., applies to an employer's challenge to the classification of its employees for purposes of establishing insurance premiums payable to Workforce Safety and Insurance, and a court's review of a decision regarding those classifications is under sections 28-32-46 and 28-32-49, N.D.C.C.
Packineau v. State , 2004 ND 208, 690 N.W.2d 429
Denial of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
State v. Murchison , 2004 ND 193, 687 N.W.2d 725
The preliminary hearing is a critical stage of the proceedings at which the defendant has a constitutional right to representation by counsel.
A defendant has the burden of establishing he is indigent and qualifies for appointment of counsel.
In deciding whether to grant a motion for recusal, the trial judge must determine whether a reasonable person could, on the basis of all the facts, reasonably question the judge's impartiality. Recusal is not required in response to spurious or vague charges of partiality.
A trial judge is allowed the widest range of discretion in fixing a criminal sentence and appellate review is generally confined to whether the court acted within the statutory sentencing limits or substantially relied upon an impermissible factor in determining the severity of the sentence.
Hansen v. Scott , 2004 ND 179, 687 N.W.2d 247
When applying principles of comity, it is not against North Dakota public policy to grant a sister state's employees the same level of immunity North Dakota state employees enjoy.
Nodak Mutual Ins. Co. v. Wamsley , 2004 ND 174, 687 N.W.2d 226
The significant-contacts approach to choice-of-law questions is appropriate in contract cases with multistate factual contacts.
In insurance contract cases, consideration of predictability of results favors application of the law of the state in which the insurance policy was negotiated, issued, and the premiums paid.
State v. Sims , 2004 ND 144, 683 N.W.2d 884
The district court may provide for the possibility of work release in accordance with the guidelines of a correctional facility.
T.E.J. v. T.S. , 2004 ND 120, 681 N.W.2d 444
The court may impute income to determine an obligor's future support obligation when the obligor has made a voluntary change in employment.
A court must grant such rights of visitation as will enable the non-custodial parent and child to maintain a parent-child relationship, and the court may restrict or deny this right only if visitation is likely to endanger the child's physical or emotional health.
State v. Guthmiller , 2004 ND 100, 680 N.W.2d 235
The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of objective reasonableness.
A district court's decision on a suppression motion is affirmed unless, after resolving conflicting evidence in favor of affirmance, there is insufficient competent evidence to support the decision or the decision goes against the manifest weight of the evidence.
State v. Clark , 2004 ND 85, 678 N.W.2d 765
An appellate court exercises its authority to notice obvious error cautiously and only in exceptional circumstances in which the defendant has suffered a serious injustice.
A prosecutor's closing arguments may properly draw reasonable conclusions and argue permissible inferences from the evidence, but a prosecutor may not create evidence by argument or by incorporating personal beliefs into the argument.
An argument that asks jurors to place themselves in the shoes of a party is improper and should be avoided.
State v. Pettit , 2004 ND 50, 676 N.W.2d 813
Criminal conviction for accomplice to manufacturing methamphetamine is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).
Mock v. Mock , 2004 ND 14, 673 N.W.2d 635
A party seeking a change of child custody is entitled to an evidentiary hearing if he presents a prima facie case by alleging, with supporting affidavits, sufficient facts which, if uncontradicted, would support a custody change.
Potential endangerment to a child's physical or mental health may be a significant change of circumstances supporting a modification of custody.
The district court may consider pre-divorce conduct when the facts were unknown to the court at the time of the original stipulation.
Knodel v. Knodel , 2003 ND 176, 674 N.W.2d 21
Divorce judgment summarily affirmed under N.D.R.App.P. 35.1(a)(2).
State v. Corum , 2003 ND 89, 663 N.W.2d 151
Illegally obtained evidence cannot be the basis for a magistrate's finding of probable cause to support a search warrant.
To challenge a search warrant on the basis that police intentionally omitted relevant information when applying for the warrant, the defendant must show that probable cause would not have existed if the omitted information had been provided to the magistrate.
Failure to inform a magistrate about an informant's criminal history and pending criminal charges is not fatal to the validity of a search warrant.
State v. Norman , 2003 ND 66, 660 N.W.2d 549
The DNA database sampling requirements in N.D.C.C. 31-13-03 apply (1) to persons convicted after July 31, 2001, of a listed felony offense; and (2) to persons incarcerated after July 31, 2001, as a result of a conviction for one of the listed offenses.
Only issues which have been thoroughly briefed and argued will be addressed on appeal.
Obtaining a DNA sample under N.D.C.C. 31-13-03 does not violate a person's Fifth Amendment right against self-incrimination.
Skjervem v. Minot State Univ. , 2003 ND 52, 658 N.W.2d 750
When no pertinent evidence on an essential element of a party's claim is presented in resistance to a motion for summary judgment, it is presumed no such evidence exists.
Dennison v. ND Dept. of Human Services , 2003 ND 10, 656 N.W.2d 25
The State's recorded homestead statement for old age assistance benefits under N.D.R.C. 50-0707 (1943) runs against the recipient of benefits and not against the land, and the State's claim against the recipient's estate may be extinguished if not pursued in a timely manner.
Greybull v. Harlan , 2002 ND 195, 653 N.W.2d 869
Denial of motion to reduce child support payment summarily affirmed under N.D.R.App.P. 35.1(a)(7).
U.S. Bank v. Koenig , 2002 ND 137, 650 N.W.2d 820
Grants in a deed are interpreted in favor of the grantee, except a reservation in any grant is interpreted in favor of the grantor.
Repugnant words in a deed must be reconciled by interpreting the deed in a manner that gives effect to the repugnant clause subordinate to the general intent and purpose of the deed.
Hansen v. Scott , 2002 ND 101, 645 N.W.2d 223
A trial court may grant a certification under N.D.R.Civ.P. 54(b) if the issues raised in the appeal will not be mooted by future developments in the trial court.
Rule 4(b)(2), N.D.R.Civ.P., authorizes North Dakota courts to exercise personal jurisdiction over a nonresident to the fullest extent permitted by due process.
To establish personal jurisdiction over a nonresident under N.D.R.Civ.P. 4(b)(2), the requirements of one of the subparagraphs of Rule 4(b)(2) must be satisfied, and the nonresident must have sufficient minimum contacts with North Dakota so the exercise of personal jurisdiction does not offend traditional notions of substantial justice, fair play, or due process.
Dennison v. N.D. Dept. of Human Serv. , 2002 ND 39, 640 N.W.2d 447
The State's recorded homestead statement for old age assistance benefits under N.D.R.C. 50-0707 (1943) affects the right or interest of the State in land in North Dakota under the exception to the Marketable Record Title Act in N.D.C.C. 47-19.1-11(2).
In a quiet title action, parties claiming an interest in a tract of land are entitled to an adjudication of the extent, validity, superiority, and priority of their claims to the land.
Terry v. Terry , 2002 ND 2, 638 N.W.2d 11
A party seeking to set aside a judgment based upon a stipulation must show that, under the law of contracts, there is justification for setting aside the stipulation.
Rule 60(b), N.D.R.Civ.P., which sets forth the grounds for vacating a judgment, is not to be used to relieve a party from free, calculated, and deliberate choices.
Consolidated Telephone v. Western Wireless Corporation , 2001 ND 209, 637 N.W.2d 699
Unless the Federal Communications Commission's rulings and regulations have been appropriately challenged in the proper federal forum, a state court is not at liberty to review the FCC's statutory interpretation even if its soundness is doubted, and the state court must apply the rulings and regulations as written.
State regulatory bodies and state courts have concurrent jurisdiction to determine preemption questions arising under the federal Communications Act.
A "commercial mobile radio service" as defined by federal law need not obtain a certificate of public convenience and necessity from the Public Service Commission to compete with a landline local exchange telephone service in the state.
Gaab v. Ochsner , 2001 ND 195, 636 N.W.2d 669
A party is not required to prove actual or imminent domestic violence in order to obtain an extension of an existing protection order.
Remmick v. Whitman , 2001 ND 102, 627 N.W.2d 376
The interest of a recorded mineral deed grantee, who is not a named party in a subsequent action to foreclose a mortgage on the real property, is not affected by the foreclosure action.
Kinzley v. Kinzley , 2001 ND 89, 629 N.W.2d 585
The trial court's judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
Fetch v. Quam , 2001 ND 48, 623 N.W.2d 357
Summary judgment is appropriately granted when there is no genuine issue of material fact that an insurer acted in bad faith by intervening in a lawsuit to defend its own interests against its insured under an uninsured motorist provision in the insurance policy or by investigating and refusing to settle a claim by its insured which is fairly debatable as to liability.
Snyder v. ND Workers Comp. Bureau , 2001 ND 38, 622 N.W.2d 712
Unless otherwise provided, statutes in effect on the date of an injury govern workers compensation benefits.
Words not defined in a statute are to be understood in their ordinary sense.
If the Workers Compensation Bureau seeks reimbursement for benefits paid, the level of materiality required is proof a false claim or false statement caused the benefits to be paid in error.
A false claim or false statement is sufficiently material for forfeiture of future benefits if it could have misled the Bureau or medical experts in a determination of the claim.
Barrera v. State , 2001 ND 18, 621 N.W.2d 880
It is a misuse of process to raise issues on subsequent post-conviction applications that could have been raised in the initial post-conviction application.
Eckes v. Richland Co. Social Service Board , 2001 ND 16, 621 N.W.2d 851
The unambiguous settlor's intent determines the nature of the trust.
Syvertson v. Malaktaris , 2000 ND 211, 622 N.W.2d 432
Judgment dismissing a complaint under Rule 12(b), N.D.R.Civ.P., is summarily affirmed under N.D.R.App.P. 35.1.
Dakota Northwestern Assoc. Ltd. Partnership v. Burleigh Co. Bd. of Co. Comm. , 2000 ND 164, 616 N.W.2d 349
Taxation of property is a legislative function, and a reviewing court may not reverse a local governing body's valuation of property for tax purposes unless the decision is arbitrary, capricious, or unreasonable.
Wachter v. Gratech Co. Ltd. , 2000 ND 62, 608 N.W.2d 279
Conditions precedent may be waived, either expressly or by implication.
The amount of damages caused by a breach of contract is a finding of fact which will not be reversed on appeal unless it is clearly erroneous.
A plaintiff in an abuse of process action must show actual damages suffered as a result of the abuse of process.
In an abuse of process action, attorney fees and costs are not recoverable.
Wanstrom v. ND Workers Comp. Bureau , 2000 ND 17, 604 N.W.2d 860
Unless otherwise provided, the statutes in effect on the date of an injury govern workers compensation benefits.
Renner v. Mikkelson , 1999 ND 227, 606 N.W.2d 137
Trial court judgment awarding custody summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Jose v. Norwest Bank North Dakota, N.A. , 1999 ND 175, 599 N.W.2d 293
An explicit and conspicuous disclaimer in an employee personnel manual, stating no contract rights exist or the policies in it are not intended to create contractual rights, demonstrates the employer's intent the manual be only a guide for the employee.
To establish a public policy exception to the at-will employment doctrine, public policy must be evidenced by a constitutional or statutory provision expressing a clear and compelling public policy against the challenged discharge.
To be defamatory, a statement must be false.
Tibor v. Lund , 1999 ND 176, 599 N.W.2d 301
To support a request for a disorderly conduct restraining order, the petitioner must present evidence of specific acts which were intended to adversely affect the safety, security, or privacy of another person.
Stewart v. ND Workers Comp. Bureau , 1999 ND 174, 599 N.W.2d 280
Before terminating ongoing disability benefits, the Bureau must provide pretermination notice of its contemplated action, a summary of the evidence supporting the proposed termination, and an opportunity to respond to the alleged grounds for termination.
Grosinger v. M.D. , 1999 ND 160, 598 N.W.2d 799
Under the Commitment of Sexually Dangerous Individuals Act, N.D.C.C. ch. 25-03.3, the court may for good cause extend the time within which a commitment hearing must be held, and the motion for extension may be made after the original 30-day period has expired.
Dismissal of commitment proceedings is not required when there has been improper public disclosure of proceedings under N.D.C.C. ch. 25-03.3.
The Commitment of Sexually Dangerous Individuals Act, N.D.C.C. ch. 25-03.3, does not create a criminal penalty and does not violate double jeopardy.
A finding of fact in a proceeding under N.D.C.C. ch. 25-03.3 will be overturned on appeal only if it is induced by an erroneous view of the law or if the appellate court is firmly convinced the finding is not supported by clear and convincing evidence.
Morrell v. ND Dept. of Transportation , 1999 ND 140, 598 N.W.2d 111
Driver is denied procedural due process where the hearing notice wrongly states the proposed suspension period is for 91 days, rather than 365 days.
Love, f/k/a Carsen v. DeWall , 1999 ND 139, 598 N.W.2d 106
When a custodial parent relocates with the child to another state, the trial court may, when appropriate, award visitation to grandparents who previously had custody.
Larson v. Hetland , 1999 ND 98, 593 N.W.2d 785
A plaintiff in a medical malpractice action must obtain an expert opinion supporting the allegations of professional negligence within three months of commencement of the lawsuit, otherwise the trial court, within its discretion, may dismiss the lawsuit.
State v. Goulet , 1999 ND 80, 593 N.W.2d 345
Judges are not expected to divine a party's true intentions in mislabeled and misleading documents.
Parties have the primary duty to bring to the court's attention the proper rules of law applicable to a case.
N.D.R.Crim.P. 16(f)(1) does not require the prosecution to furnish to the defendant the names of its rebuttal witnesses.
The right of surrebuttal is discretionary with the trial court.
Stalcup v. Job Service , 1999 ND 67, 592 N.W.2d 549
Under N.D.C.C. 52-06-20, inadmissible evidence, including hearsay, may be considered in an unemployment compensation hearing.
A claimant's due process rights are not violated where an agency considers hearsay evidence provided there is a right to cross-examine and subpoena. Where a claimant fails to exercise these rights, they are waived.
Whitmire v. Whitmire , 1999 ND 56, 591 N.W.2d 126
A court cannot impute income from an obligor's homestead in calculating income for child support purposes.
An award of attorney fees must generally be supported by evidence upon which the court can determine the requested fees are reasonable and legitimate.
Weigel v. Weigel , 1999 ND 55, 591 N.W.2d 123
The reasons for a substitution of judge should be stated on the record.
N.D.R.Civ.P. 63 requires a successor judge to certify familiarity with the record and to determine the case may be completed before that judge without prejudice to the parties.
State v. Beckman , 1999 ND 54, 591 N.W.2d 120
Under N.D.R.Crim.P. 32, a defendant must be given a chance to personally address the trial court before being sentenced.
To substantially comply with N.D.R.Crim.P. 11, the trial court must fully advise the defendant of the constitutional rights the defendant waives with a plea of guilty.
The purpose of the inquiry required by the second sentence of N.D.R.Crim.P. 11(c), is to ascertain whether the plea of guilty is the result of plea negotiations.
State v. Gwyther , 1999 ND 15, 589 N.W.2d 575
An order dismissing a count in a criminal information without prejudice is appealable under N.D.C.C. 29-28-07(1).
A criminal information must contain a written statement of the essential elements of the offense charged. Commission of an overt act is an essential element of the crime of conspiracy and must be alleged in the information.
An oral ruling on a motion is not an appealable order.
Moen v. Meidinger , 1998 ND 161, 583 N.W.2d 634
Whether statements constitute a personal guaranty is a question of fact.
For an instrument to be enforceable as a guaranty, it must show, with reasonable clarity, an intent to be liable on an obligation in case of default by the primary obligor.
The parties' mutual assent to a contract is determined by their objective manifestations of contractual assent, not their secret intentions.
State v. Moe , 1998 ND 137, 581 N.W.2d 468
The certificate of the warden required by Art. III, 1 of the Interstate Agreement on Detainers, N.D.C.C. 29-34-01, is mandatory, and the Act is not triggered if no certificate accompanies the request for speedy disposition of detainers.
Where Colorado authorities did not forward the prisoner's request for disposition of detainers to North Dakota authorities, the 180-day time limit under the Act did not commence.
The Uniform Mandatory Disposition of Detainers Act, N.D.C.C. ch. 29-33, applies only where a detainer has been filed against a person incarcerated in North Dakota.
A defendant was not denied his right to a speedy trial where he never expressly asserted the right and much of the seven month delay was caused by his own conduct.
State of North Dakota v. Hagerty , 1998 ND 122, 580 N.W.2d 139
The Supreme Court's power to issue a supervisory writ is a discretionary power, exercised rarely and cautiously, only to rectify errors and prevent injustice in extraordinary cases where no adequate alternative remedy exists.
An issue is not ripe for review if it depends on future contingencies which, although they might occur, necessarily may not, thus making addressing the question premature.
Constitutional officers have such implied and incidental powers as are necessary for the exercise of powers expressly granted.
An ambiguity exists when good arguments can be made for two contrary positions about the meaning of a term in a document.
Contingency fee agreements between the State and special assistant attorneys general are lawful.
City of Bismarck v. Fischer , 1998 ND 79, 585 N.W.2d 581
DUI conviction summarily affirmed under N.D.R.App.P. 35.1 (a)(4).
State v. Bender , 1998 ND 72, 576 N.W.2d 210
When a defendant is sentenced to probation following a term of imprisonment, the court may order the defendant to participate in treatment or counseling programs while in prison as a prior condition of probation.
When the defendant violates the terms of his probation while still incarcerated, the court may revoke probation at that time and need not wait until the defendant is actually released on probation.
Where an application for post-conviction relief alleging ineffective assistance of counsel was not patently frivolous, the trial court erred in summarily denying the application without a responsive pleading or motion by the State, and without affording the applicant an opportunity to provide evidentiary support for his allegations.
Singha v. ND State Board of Medical Examiners , 1998 ND 42, 574 N.W.2d 838
Section 43-17-18(3), N.D.C.C., requires a foreign-educated applicant for a license to practice medicine to demonstrate to the Board of Medical Examiners the kinds of courses taken at a foreign institution, when combined with the successful completion of three years of Board-approved postgraduate training, are substantially equivalent to the kinds of courses required at a reputable medical or osteopathic college in the United States and the successful completion of one year of Board-approved postgraduate training. The procedures of the Administrative Agencies Practice Act, N.D.C.C. Ch. 28-32, apply to the Board's consideration of an application for licensure.
Freezon v. ND Workers Comp. , 1998 ND 23, 574 N.W.2d 577
An informal Bureau decision based on a claim form, medical records, and letters, and issued without the benefit of a formal evidentiary hearing, is not an appealable order.
State v. Schmidt , 1998 ND 22, 576 N.W.2d 524
Conviction of three counts of drug charges summarily affirmed under N.D.R.App.P. 35.1.
Whitmire v. Whitmire , 1997 ND 214, 570 N.W.2d 231
Denial of motion to quash an emergency order for change of custody is appropriate when the respondent has not filed a supporting affidavit for an evidentiary hearing contesting the emergency, as required by NDROC 8.2.
An interim order cannot direct amendment of a final judgment.
Lende v. ND Workers Comp. Bureau , 1997 ND 178, 568 N.W.2d 755
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.
Coleman v. ND Workers Comp. Bureau , 1997 ND 168, 567 N.W.2d 853
NDCC 65-05-12 and 65-01-02 adopted the edition of the AMA's Guides to the Evaluation of Permanent Impairment in existence at the time of their enactment.
Cladding Technology v. State ex rel. Clayburgh , 1997 ND 84, 562 N.W.2d 98
A repair business is responsible for use tax on repair materials purchased from out-of-state vendors who did not collect tax, and for sales tax on purchases from in-state vendors who did not collect tax. A taxpayer is responsible for sales or use tax on freight costs that are not separately billed. Decision of tax commissioner not to excuse the taxpayer from interest and penalties will not be disturbed unless it is arbitrary.
Schmidt v. Schmidt , 1997 ND 44, 560 N.W.2d 886
The trial court did not err in issuing a writ of eviction against a devisee of farmland in an estate so the personal representative could take possession of the farmland for administration purposes.
Hulstrand Construction v. James Cape & Sons, Co. , 1997 ND 27, 565 N.W.2d 505
Arbitration award summarily affirmed under Rule 35.1, N.D.R.App.P.
Frohlich v. ND Workers Comp. Bureau , 556 N.W.2d 297 (N.D. 1996)
Under N.D.C.C. 65-05-08.1, the workers compensation bureau must request an updated medical report about the duration of a claimant's temporary total disability before terminating continuing benefits.
State v. Zahn , 562 N.W.2d 104 (N.D. 1996)
Driving under suspension conviction summarily affirmed under Rule 35.1, N.D.R.App.
Kinney Shoe Corp. v. State ex rel. Hanson , 552 N.W.2d 788 (N.D. 1996)
Under Section 57-38-01.3(1)(c), N.D.C.C., a subsidiary corporation's state income tax deduction for federal income taxes 'paid or accrued' is the subsidiary's proportionate share of the federal tax actually paid to the federal government by the subsidiary's parent corporation.
Moen v. Meidinger , 547 N.W.2d 544 (N.D. 1996)
Belgarde v. ND Workers Comp. , 544 N.W.2d 176 (N.D. 1995)
Estate of Thomas , 532 N.W.2d 676 (N.D. 1995)
State v. Trotter , 524 N.W.2d 601 (N.D. 1994)
Guardianship of Norman , 524 N.W.2d 358 (N.D. 1994)
Guardianship of Norman , 521 N.W.2d 395 (N.D. 1994)
Estate of Ketterling , 515 N.W.2d 158 (N.D. 1994)
City of Bismarck v. Kastrow , 516 N.W.2d 300 (N.D. 1994)
City of Bismarck v. Uhden , 513 N.W.2d 373 (N.D. 1994)
Rieniets v. ND Workers Compensation Bureau , 512 N.W.2d 708 (N.D. 1994)
Interest of B.D. , 510 N.W.2d 629 (N.D. 1994)
Tharp v. Job Service ND , 516 N.W.2d 300 (N.D. 1994)
Community Homes of Bismarck v. Clooten , 508 N.W.2d 364 (N.D. 1993)
Guardianship of Renz , 507 N.W.2d 76 (N.D. 1993)
Estate of Rohrich , 496 N.W.2d 566 (N.D. 1993)
Kipp v. Lipp , 495 N.W.2d 56 (N.D. 1993)
Interest of R.N. , 492 N.W.2d 582 (N.D. 1992)
Interest of S. S. , 491 N.W.2d 721 (N.D. 1992)
United Bank of Bismarck v. Trout , 480 N.W.2d 742 (N.D. 1992)
Interest of T.A. , 472 N.W.2d 226 (N.D. 1991)
Interest of M.B. , 467 N.W.2d 902 (N.D. 1991)
Hansen v. Winkowitsch , 463 N.W.2d 645 (N.D. 1990)
Interest of L.B. , 452 N.W.2d 75 (N.D. 1990)
State v. Schaeffer , 450 N.W.2d 754 (N.D. 1990)
City of Bismarck v. Harris , 442 N.W.2d 447 (N.D. 1989)
State v. Connery , 441 N.W.2d 651 (N.D. 1989)
State v. Falconer , 426 N.W.2d 10 (N.D. 1988)
City of Bismarck v. Vetter , 417 N.W.2d 186 (N.D. 1987)
Interest of R. Z. , 415 N.W.2d 486 (N.D. 1987)
State v. Turner , 414 N.W.2d 293 (N.D. 1987)

Generated from Supreme Court Docket on 08/28/2008