Laib v. Laib
, 2008 ND 129,
751 N.W.2d 228
When the district court in a divorce proceeding has made specific findings that the domestic violence presumption against an award of custody has been triggered and the perpetrator has failed to rebut the presumption, the court may not later change
custody to the perpetrator unless the court finds by clear and convincing evidence that the presumption has been rebutted.
A motion for relief from a judgment is not a substitute for an appeal.
State v. Mayer
, 2008 ND 120,
Conviction for possessing marijuana, methamphetamine, and drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).
Peterson v. Ziegler
, 2008 ND 115,
751 N.W.2d 201
Generally, the time computation rules in N.D.R.Civ.P. 6 apply to an appeal from an administrative agency decision unless the provisions of the rule conflict with a governing statute.
A driver is not harmed by a law enforcement officer's failure to give the implied consent advisory before the driver consents to a chemical test.
B.L.L. v. W.D.C.
, 2008 ND 107,
750 N.W.2d 466
Whether a child has been abandoned is a question of fact.
Non-custodial parents abandon their children if they fail, without justifiable cause, to communicate with the child or to provide for the care and support of the child as required by law.
While imprisonment alone is not sufficient to constitute intentional abandonment, imprisonment when combined with other factors, such as parental neglect and withholding parental affection, may support a finding that the parent had relinquished all
parental claims and thereby abandoned the child.
State v. Feist
, 2008 ND 82,
A criminal judgment for fleeing or attempting to elude a police officer is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (3) and (4).
State v. Jacobson
, 2008 ND 73,
747 N.W.2d 481
An appearance of partiality requiring a judge's disqualification does not automatically result from a judge's casual or social acquaintance with a witness.
A disqualified judge whose withdrawal from a case is not mandatory has the option of either withdrawing or disclosing to the parties on the record the basis for his disqualification.
A party seeking to disqualify a judge from a proceeding must file a timely motion.
A party who knows the facts that would form the basis of disqualification prior to entry of a judgment against him waives his right to disqualification of a judge by failing to request disqualification until after the judge enters a judgment adverse
to that party.
State v. Schmalz
, 2008 ND 27,
744 N.W.2d 734
Probable cause exists when the facts and circumstances relied upon by the judge who issues the warrant would lead a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.
"Bare-bones" information is not sufficient to satisfy the probable cause requirement for a warrant.
The determination of whether probable cause exists to issue a search warrant is a question of law.
Simply because a warrant application contains some information that is not relevant, or is, in and of itself, insufficient to create probable cause, does not necessarily mean probable cause did not exist to validly issue the warrant.
While the our state constitution may, in certain instances, provide greater individual rights than those afforded under the federal constitution, like the Fourth Amendment, Article I, section 8 of the North Dakota Constitution is not implicated
unless a reasonable expectation of privacy is invaded.
Patten v. State
, 2008 ND 29,
745 N.W.2d 626
A lawyer must abide by a competent defendant's decision regarding the plea to be entered.
If a defendant is competent and voluntarily pleads guilty, the defendant waives the right to raise the defense of lack of criminal responsibility when the acts occurred.
State v. St. Claire
, 2008 ND 1,
747 N.W.2d 136
Judgment in a drug case following denial of motion to suppress evidence is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (3).
Christian v. Christian
, 2007 ND 196,
742 N.W.2d 819
Permanent spousal support is appropriate when the economically disadvantaged spouse cannot be equitably rehabilitated to make up for the opportunities and development she lost during the course of the marriage.
When the parties to a divorce have reached an agreement on all matters pertaining to division of their property, there is no reason for the district court to hear evidence of the value of marital property.
In deciding whether to award attorney fees in a divorce action, the district court must balance one party's needs against the other party's ability to pay.
Submission of an affidavit to support an award of attorney fees is not necessary when the award is supported by testimony and other documentary evidence received in an evidentiary hearing.
Evidence that is discoverable before trial does not qualify as newly discovered evidence.
A property settlement agreement that is unconscionable may be set aside.
State v. $2996.00 U.S. Currency
, 2007 ND 171,
742 N.W.2d 839
Order granting forfeiture of $2996.00 is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).
State v. Fasteen
, 2007 ND 162,
740 N.W.2d 60
Under the Terry doctrine, a law enforcement officer can make an investigative stop of a vehicle if the officer has a reasonable and articulable suspicion that the motorist has violated or is violating the law.
Under N.D.C.C. 39-10-38(1), no person may turn a vehicle right or left upon a roadway without giving an appropriate signal and unless or until such movement can be made with reasonable safety.
Capital Electric Coop., Inc. v. City of Bismarck
, 2007 ND 128,
736 N.W.2d 788
If a municipality has enacted an ordinance that requires electric suppliers to have a franchise, a rural electric cooperative must have a franchise to provide electric service within the municipality.
A franchise is a contract and is interpreted under rules for interpretation of a contract. Contracts are construed to give effect to the parties' mutual intention at the time of contracting, and the parties' practical interpretation of a franchise is
entitled to some influence.
Rahn v. State
, 2007 ND 121,
736 N.W.2d 488
An order denying a motion to correct an illegal sentence under N.D.R.Crim.P. 35(a) is appealable, but an order denying a motion for reduction of sentence under N.D.R.Crim.P. 35(b) is not appealable.
Post-conviction proceedings under N.D.C.C. ch. 29-32.1 may not be used to challenge the Department of Corrections' failure to provide medical treatment to an inmate.
Wagner v. Wagner
, 2007 ND 101,
733 N.W.2d 593
After including all of the parties' marital assets, the court must consider the Ruff-Fischer guidelines in its distribution of the parties' assets.
A long-term marriage supports an equal distribution of property. Liquidation of an ongoing farming operation is ordinarily a last resort.
Property division and spousal support are interrelated and intertwined and often must be considered together.
State v. Dennis
, 2007 ND 87,
733 N.W.2d 241
Consistent with the presumption that compliance with the constitutions of the state and of the United States is intended, criminal statutes are strictly construed in favor of the defendant and against the government.
When a form of conduct, the manner of its performance and operation, and the persons and things to which it refers are designated, there is an inference that all omissions should be understood as exclusions.
N.D.C.C. 19-03.1-23.1(1)(a) provides an offense enhancement only for the manufacture or distribution of a controlled substance within one thousand feet of a school.
D.G.L. Trading Corp. v. Reis
, 2007 ND 88,
732 N.W.2d 393
The general rule that questions not raised before the district court will not be considered on appeal cannot be applied so narrowly as to affirm erroneous or incomplete applications of law in favor of judicial expediency.
U.C.C. provisions allow parties to make separate contracts regarding the return terms and risk of loss.
State v. Westmiller
, 2007 ND 52,
730 N.W.2d 134
Although reasonable suspicion is the minimum quantum of evidence required for an investigatory traffic stop, a stop may be upheld on the basis of probable cause if that evidentiary standard has been satisfied.
Traffic violations, even if considered common or minor, constitute prohibited conduct and therefore provide officers with the basis for an investigatory stops.
State v. Bovkoon
, 2007 ND 47,
734 N.W.2d 342
Conviction for livestock running at large is summarily affirmed under N.D.R.App.P. 35.1(a)(4).
Interest of R.W.S.
, 2007 ND 37,
728 N.W.2d 326
When deciding a question of the violation of a federal constitutional right, courts look to federal courts for guidance. Decisions of federal courts other than the United States Supreme Court, interpreting the United States Constitution are
considered for guidance.
Juveniles have the same rights as adult defendants to be free from physical restraints. The right to remain free from physical restraints is based on considerations beyond the potential for jury prejudice, including inhibition of free consultation
with counsel. Extending the right to remain free from physical restraints during juvenile proceedings is consonant with the rehabilitative purposes of the juvenile justice system.
The constitutional requirement to be free from physical restraints is not absolute. The court may take into account special considerations that call for restraints.
The factors a juvenile court should consider when deciding whether to place a juvenile in physical restraints are: the accused's record, temperament, and the desperateness of his situation; the security situation at the courtroom and courthouse; the
accused's physical condition; and whether there was an adequate means of providing security that was less prejudicial.
The burden is on the beneficiary of a constitutional error to prove the error is harmless beyond a reasonable doubt.
The admissibility of an in-court identification that is not preceded by a pretrial identification is to be determined by considering whether the in-court identification procedure is unnecessarily suggestive and susceptible to a substantial likelihood
of irreparable misidentification.
Any suggestiveness of an in-court identification can be reduced by the juvenile's opportunity to cross-examine the witnesses and his ability to raise doubts about the accuracy of the identifications.
State v. Streeper
, 2007 ND 25,
727 N.W.2d 759
When a person puts another in danger, such as by unlawfully injecting her with drugs, and then does nothing to aid her in the resulting medical crisis, the failure to take appropriate action may be considered as a continuation of criminal
conduct.
The use and admission of photographs in criminal trials is largely within the discretion of the district court.
A statement of a criminal defendant is admissible even though the defendant intended it to be exculpatory when made.
In controlling the scope of closing argument, the district court is vested with discretion, and absent a clear showing of an abuse of discretion, the conviction will not be reversed on grounds the prosecutor exceeded the scope of permissible closing
argument.
Whitecalfe v. ND Dept. of Transportation
, 2007 ND 32,
727 N.W.2d 779
The Department of Transportation must meet the basic and mandatory provisions of the statute to have authority to revoke driving privileges.
When a licensee is arrested for driving under the influence and receives an initial notice of revocation of driving privileges, the licensee is not denied due process simply because the initial notice does not include a statement of the arresting
officer's probable cause.
State v. Proell
, 2007 ND 17,
726 N.W.2d 591
North Dakota is a sovereign, separate from the federal government, and the state's power to prosecute crimes is derived from its inherent sovereignty, not from the federal government.
As a result of inherent state sovereignty, state court proceedings are not ancillary to federal proceedings and state courts are not in privity with or bound by a federal court decision on a motion to suppress evidence.
Contraband found in a search incident to a valid arrest is admissible unless the search is invalidated on another basis.
State v. Myers
, 2006 ND 242,
724 N.W.2d 168
A fundamental principle of constitutional law is that a prosecutor may not comment on a defendant's failure to testify in a criminal case.
When there is an adjournment of proceedings in a jury trial, the district court must admonish a jury that it is their duty not to converse among themselves nor with anyone else on any subject connected with the trial, nor to form or express any
opinion thereon, until the case is finally submitted to them.
Unterseher v. Ziegler
, 2006 ND 226,
725 N.W.2d 588
Suspension of driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(5).
Jangula v. Jangula
, 2006 ND 206,
725 N.W.2d 588
A district court's property division in a divorce is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Haugen v. BioLife Plasma Services
, 2006 ND 117,
714 N.W.2d 841
The doctrine of res ipsa loquitur allows a fact finder to infer negligence if the plaintiff can establish three foundational elements: (1) the accident was one that does not ordinarily occur in the absence of negligence; (2) the instrumentality or
agent that caused the plaintiff's injury was in the exclusive control of the defendant; and (3) there was no voluntary action or contribution on the part of the plaintiff.
When a plaintiff can present specific evidence of negligence and the cause of an accident, the plaintiff has no need to rely on a res ipsa loquitur inference.
Flanagan v. State
, 2006 ND 76,
712 N.W.2d 602
An application for post-conviction relief may be denied as res judicata if the claim is a variation of a claim that was fully and finally determined in a previous proceeding.
A defendant claiming ineffective assistance of counsel must establish counsel's representation fell below an objective standard of reasonableness and the defendant was prejudiced by counsel's deficient performance.
To establish prejudice, a defendant must establish a reasonable probability that but for counsel's errors the result of the criminal proceeding would have been different, and a reasonable probability is a probability sufficient to undermine
confidence in the outcome of the criminal proceeding.
Sack v. Sack
, 2006 ND 57,
711 N.W.2d 157
The disadvantaged-spouse requirement for spousal support is abolished.
Spousal support decisions are to be based on the Ruff-Fischer guidelines.
A court may award items of personal property to a party if the other party agrees to the award in court.
State v. Freeman
, 2006 ND 6,
711 N.W.2d 606
A district court's rejection of an application of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6).
Issues not briefed by an appellant are abandoned and will not be considered on appeal.
Schwan v. Folden
, 2006 ND 28,
708 N.W.2d 863
If a plaintiff does not move for default judgment after the default has occurred or within a reasonable time after the default, and the answer is subsequently filed, the plaintiff waives its right to default judgment for a defendant's failure to
appear.
The strong preference of the courts is to decide cases on their merits rather than by default judgment.
A party who proceeds to trial rather than pursuing a default judgment waives its right to default judgment.
Only items in the record may be included in the appendix, and the Supreme Court may take appropriate action against any person failing comply with this rule.
Interest of B.V.
, 2006 ND 22,
708 N.W.2d 877
An order committing a sexually dangerous individual will be affirmed unless it is induced by an erroneous view of the law or it is not supported by clear and convincing evidence.
In a commitment proceeding, an indigent respondent entitled to appointment of an independent examiner does not have the right to choose a specific examiner.
When the commitment proceeding is not held within the statutorily required sixty days, the case will not be dismissed if the delay was caused by the respondent's actions.
A competent party in a civil commitment proceeding who wishes to represent himself cannot be coerced into accepting appointed counsel where there is a clear request for self-representation.
Jangula v. Jangula
, 2005 ND 203,
706 N.W.2d 85
Once separate property, or property exempt from being included as marital property, is commingled, placed into a joint bank account, or placed in joint tenancy, the property no longer has any separate identity and therefore becomes marital property.
Kerzmann v. Burleigh County Social Services
, 2005 ND App 7,
711 N.W.2d 236
The district court's dismissal of an attempted appeal because the appeal from an administrative law judge's decision affirming an agency employment termination was not properly perfected under N.D.C.C. 28-32-42 is summarily affirmed.
Cusey v. Nagel
, 2005 ND 84,
695 N.W.2d 697
A person who petitions for a disorderly conduct restraining order must allege specific facts or threats.
Jorgensen v. ND Dept. of Transportation
, 2005 ND 80,
695 N.W.2d 212
Inclusion of chemical test results in an officer's certified report to the Director of the North Dakota Department of Transportation under N.D.C.C. 39-20-03.1(3) is a basic and mandatory provision without which the department may not suspend a
person's driving privileges.
Harter v. ND Dept. of Transportation
, 2005 ND 70,
694 N.W.2d 677
Section 39-20-04.1(1)(a), N.D.C.C., provides penalties for persons under the age of 21 who drive with a blood alcohol concentration of at least .02 percent by weight.
The rule of lenity, which requires ambiguities in the law to be interpreted in favor of a criminal defendant, does not apply in civil cases.
Makeeff v. City of Bismarck
, 2005 ND 60,
693 N.W.2d 639
A landowner is not immune from liability for an accident that occurs on the landowner's premises just because the accident was caused by a natural accumulation of snow and ice.
Landowners or occupiers have a duty to lawful entrants to reasonably maintain their property in a reasonably safe condition, in view of all the circumstances, including the likelihood of injury to another, the seriousness of an injury, and the burden
of avoiding the risk.
Landowners, however, are not insurers of their premises, nor must they endure unreasonable burdens to maintain it.
State v. Nelson
, 2005 ND 59,
693 N.W.2d 910
If an application for a search warrant contains statements intentionally false or made with reckless disregard for the truth, the false material must be set aside, and if the remaining content is insufficient to establish probable cause, the warrant
must be voided and the fruits of the search excluded.
To establish probable cause for a search, there must be a nexus between the place to be searched and the contraband sought.
Mere suspicion that criminal activity is taking place which may warrant further investigation does not rise to a level of probable cause to search.
Kastrow v. State
, 2005 ND 58,
694 N.W.2d 22
Denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
Rhodes v. Rhodes
, 2005 ND 38,
692 N.W.2d 157
A prenuptial agreement is a contract, and its interpretation is primarily a question of law for the court to decide.
State v. Rupp
, 2005 ND 3,
694 N.W.2d 22
Conviction of attempted aggravated assault is summarily affirmed under N.D.R.App.P. 35.1(a)(3).
City of Mandan v. Cordova
, 2004 ND 220,
691 N.W.2d 194
The district court's judgment affirming the prior municipal court decision finding indecent conduct is summarily affirmed under N.D.R.App.P. 35.1(a)(3).
State v. Donovan
, 2004 ND 201,
688 N.W.2d 646
Suppression of evidence in a criminal case is proper when the defendant is able to show the search warrant was issued in reliance upon an affidavit containing false or misleading statements.
Credibility of an informant who is a member of the "criminal milieu" must be established by more than easily obtainable facts.
Kouba v. State of North Dakota
, 2004 ND 186,
687 N.W.2d 466
Public policy demands that the State retain immunity for the exercise of discretionary acts in its official capacity, including legislative, judicial, quasi-legislative, and quasi-judicial functions. The adjudicative acts performed by State
officials in carrying out their duties are quasi-judicial in nature, and, therefore, immune from liability. When a governmental agency systemically disregards the requirements of law, reversal may be required to ensure the government acts
consistently and predictably in accordance with the law.
Kouba v. Hoeven
, 2004 ND 185,
687 N.W.2d 491
A petitioner for a writ of mandamus must demonstrate a clear legal right to performance of the act sought to be compelled by the writ and must demonstrate there is no other plain, speedy, and adequate remedy in the ordinary course of the law.
Minn-Kota Ag Products, Inc. v. Carlson
, 2004 ND 145,
684 N.W.2d 60
Issues of fact may become questions of law if a reasonable person could reach only one conclusion from the facts.
Mere speculation is not enough to defeat a motion for summary judgment. There must be enough evidence for a reasonable jury to find for the plaintiff.
An attorney has not committed legal malpractice by failing to file a cause of action when the statute of limitations expires before the attorney is retained.
State v. Gill
, 2004 ND 137,
681 N.W.2d 832
The State has the burden in a restitution hearing to prove the amount of restitution by a preponderance of the evidence.
The defendant has the burden to raise and prove an inability to pay the amount of restitution ordered.
State v. Ehli
, 2004 ND 125,
681 N.W.2d 808
A probation condition prohibiting a sex offender from having contact with his minor children is not a de facto termination of parental rights.
Gartner v. Job Service North Dakota
, 2004 ND 135,
681 N.W.2d 828
An unemployed individual may be entitled to unemployment benefits while attending a retraining program if reasonable and suitable work opportunities for which the individual is suited by training, experience, and physical capabilities do not exist in
the individual's locality.
State v. Flanagan
, 2004 ND 112,
680 N.W.2d 241
An appellate court may notice a claimed error that was not brought to the attention of the trial court if there was plain error which affected the defendant's substantial rights, and the appellate court concludes the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.
Omitting an element of the crime from the jury instruction is obvious error, but is not reversible error when the element was not disputed.
The issue of impermissible gender-based peremptory challenges must be raised in the trial court.
Duma v. Keena
, 2004 ND 104,
680 N.W.2d 627
Unopposed instructions become the law of the case.
A special verdict will be set aside only if it is perverse and clearly contrary to the evidence. Reconciliation of a verdict includes an examination of both the law of the case and the evidence in order to determine whether the verdict is logical
and probable and thus consistent, or whether it is perverse and clearly contrary to the evidence.
Wetsch v. ND Dept. of Transportation
, 2004 ND 93,
679 N.W.2d 282
Refusal to submit to an onsite screening test constitutes a violation of informed consent law and may properly result in a one-year suspension of an individual's driver's license.
An individual's demand to have blood drawn for a chemical screening in a medical environment, such as a hospital, constitutes refusal under North Dakota's informed consent statute.
Gullickson v. Kline
, 2004 ND 76,
678 N.W.2d 138
Only a person who has been the victim of disorderly conduct, or the parent or guardian of a minor who has been a victim, may seek a disorderly conduct restraining order.
Procedural due process requires fundamental fairness, which, at a minimum, necessitates notice and a meaningful opportunity for a hearing appropriate to the nature of the case.
Danzl v. Heidinger
, 2004 ND 74,
677 N.W.2d 924
Absent statutory or contractual authority, each party to a lawsuit bears the party's own attorney fees.
State v. Wilson
, 2004 ND 51,
676 N.W.2d 98
A defendant challenging the sufficiency of the evidence must show that the evidence, when viewed in the light most favorable to the verdict, supports no reasonable inference of guilt.
Failure to give defendant's requested instruction is not error when the requested instruction misstates the law and when the instruction might unnecessarily confuse the jury.
First Union National Bank v. RPB 2, LLC
, 2004 ND 29,
674 N.W.2d 1
Consideration is not required for the release or waiver of a mechanic's lien to be effective.
Once a lien claimant files a signed waiver or release of a mechanic's lien, the lien may not be revived by the subsequent filing of another lien.
Fraud in procuring release of a mechanic's lien must be proved by clear and convincing evidence.
Paul v. Workforce Safety and Insurance
, 2003 ND 188,
671 N.W.2d 795
The vocational rehabilitation statutes are designed to return an injured employee to substantial gainful employment as quickly and with as little retraining as possible.
Workforce Safety and Insurance's decision to terminate rehabilitation benefits must be based upon evidence that jobs exist which provide the applicant a reasonable opportunity for employment and not on a burden-shifting presumption that such jobs
exist.
Hanson v. Director, ND Dept. of Trans.
, 2003 ND 175,
671 N.W.2d 780
Weaving twice onto the lane-dividing line on an interstate highway, even without erratic movement or sharp veering, can be sufficient to stop a vehicle.
A vehicle weaving within its own lane may be enough to justify the stop of a vehicle.
Although reasonable suspicion to stop a vehicle requires more than a "mere hunch," this standard does not require an officer to see a motorist violate a traffic law.
The totality of circumstances is considered when determining whether reasonable suspicion exists to stop a vehicle.
State v. Ehli
, 2003 ND 133,
667 N.W.2d 635
Due process requires that parties be given notice and afforded a meaningful opportunity to present objections.
Questa Resources v. Stott
, 2003 ND 51,
658 N.W.2d 756
A foreign corporation creating and enforcing a security interest by way of a mortgage is not required to obtain a certificate of authority in this state prior to bringing an action to foreclose the mortgage.
Morris v. Job Service
, 2003 ND 45,
658 N.W.2d 345
A claimant for unemployment benefits has the burden of establishing the claimant, rather than the claimant's employers, contributed to a pension fund, to avoid the pension offset provisions of N.D.C.C. 52-06-02(15).
The pension offset provisions of N.D.C.C. 52-06-02(15) do not distinguish between amounts contributed to a pension fund by an employer and amounts contributed to a pension fund by an employer under the directives of a collective bargaining agreement.
State v. Jahner
, 2003 ND 36,
657 N.W.2d 266
Failure to raise an appropriate objection in the trial court waives the right, and the issue cannot be raised for the first time on appeal. Waiver applies to all rights and privileges to which a person is legally entitled when they are for the
benefit of and rest in the individual who waived them.
A trial court is neither required to nor prohibited from instructing the jury on proof beyond a reasonable doubt.
Strict standards of logical consistency need not be applied to jury verdicts in criminal cases. The standard for reconciling a jury verdict is whether the verdict is legally inconsistent.
Simpson v. Chicago Pneumatic Tool Co.
, 2003 ND 31,
657 N.W.2d 261
A trial court's discovery decision and denial of a motion for new trial will not be reversed on appeal unless the court abused its discretion.
Murchison v. State
, 2003 ND 38,
658 N.W.2d 320
A court may deny a post-conviction application on the grounds of misuse of process when a defendant inexcusably fails to pursue an issue leading to judgment of conviction, inexcusably fails to pursue an issue on appeal having raised the issue in the
trial court, or inexcusably fails to raise an issue in an initial post-conviction proceeding.
A court may deny a post-conviction application on the grounds of res judicata if the same claims have been fully and finally determined in a previous proceeding.
State v. Holzer
, 2003 ND 19,
656 N.W.2d 686
When challenging the validity of a search warrant based on an allegation of information being omitted from the application for the warrant, the defendant must show (1) that the police omitted facts with the intent to make, or in reckless disregard of
whether they thereby made, the affidavit misleading, and (2) that the affidavit if supplemented by the omitted information would not have been sufficient to support a finding of probable cause.
State v. Hammeren
, 2003 ND 6,
655 N.W.2d 707
The defendant has the burden of proving, by a preponderance of evidence, the affirmative defense of entrapment.
The statute permitting minors to be transferred from juvenile court to the district court for certain crimes was enacted to treat minors as adults for purposes of prosecution. Thus, law enforcement officers are entitled to investigate minors engaged
in drug-related activity the same way they would an adult.
State v. Gratech Co.
, 2003 ND 7,
655 N.W.2d 417
Absent a specific statutory or contractual exclusion, arbitrators have jurisdiction to determine whether a party has complied with procedural conditions precedent to arbitration.
Grad v. Jepson
, 2002 ND 153,
652 N.W.2d 324
The standard of review for a minor child's name change petition is abuse of discretion.
"Proper and reasonable cause" includes consideration of the best interests of the child in the context of a petition to change a minor child's name.
Roe v. Doe
, 2002 ND 136,
649 N.W.2d 566
Under N.D.R.Civ.P. 60(b)(iv), the burden is on the moving party to show sufficient grounds exist for disturbing the finality of a judgment.
A judgment entered without subject matter jurisdiction is void.
State courts may not exercise jurisdiction over a paternity and support action if state court jurisdiction would infringe on an Indian tribe's right to govern itself.
In general, tribal courts do not have exclusive jurisdiction over claims against tribal defendants that arise outside of the reservation.
To vacate a state court judgment on the paternity of an Indian child, the moving party must show that the state court lacked jurisdiction as a matter of law.
Interest of T.J.R.
, 2002 ND 90,
647 N.W.2d 706
Termination of parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Kaffar v. Dschaak
, 2002 ND 92,
647 N.W.2d 706
Judgment quieting title to a parcel of property and denying claim of acquiescence to a new boundary line is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Knutson v. The County of Barnes
, 2002 ND 68,
642 N.W.2d 910
Failure to present a claim against the state to the office of management and budget within one hundred and eighty days requires dismissal of a subsequent action. Summary judgment is appropriate when a party fails to plead the necessary elements to
satisfy the statutory RICO requirements.
Jaskoviak v. Gruver
, 2002 ND 1,
638 N.W.2d 1
Evidence submitted with a motion for reconsideration after summary judgment has been granted is untimely.
Generally, an integral part of the physician's overall obligation to the patient is the duty of reasonable disclosure of the available choices with respect to the proposed therapy and of the material and known risks potentially involved in each.
In an informed consent case, expert testimony is generally necessary to identify the risks of treatment, their gravity, likelihood of occurrence, and reasonable alternatives.
Trottier v. Bird
, 2001 ND 177,
635 N.W.2d 157
When a court lacks subject matter jurisdiction, it must dismiss the action under Rule 12(h)(3).
US Bank v. Arnold
, 2001 ND 130,
631 N.W.2d 150
Whether a telephone call is an appearance entitling a defendant to eight days' notice before a hearing on an application for default judgment is generally a question of law, fully reviewable on appeal. When the nature, content, and purpose of the
call is disputed, underlying factual questions are reviewed for clear error.
Relief from default judgment is extraordinary; a party seeking to disturb the finality of default judgment bears a heavy burden of proving the district court abused its discretion. To vacate default judgment, the moving party must present evidence
connecting allegations of a medical condition, a busy schedule, or familial illness with excusable neglect.
Interest of A.B.
, 2001 ND 111,
627 N.W.2d 776
If juvenile delinquency proceedings are begun in a court other than in the county of the child's residence, that court must transfer the proceedings for disposition to the juvenile court of the county of the child's residence, if the child has been
adjudicated delinquent and other proceedings involving the child are pending in that court.
Fox v. Fox
, 2001 ND 88,
626 N.W.2d 660
A choice between two permissible views of the evidence is not clearly erroneous when the trial court's findings are based either on physical or documentary evidence or inferences from other facts or on credibility determinations.
A court's valuation of marital property is dependent upon the evidence presented by the parties.
Halvorson v. Halvorson
, 2001 ND 75,
629 N.W.2d 585
Judgment denying a motion for reconsideration of a child support order is summarily affirmed under N.D.R.App.P. 35.1(a)(4).
State v. Duchene
, 2001 ND 66,
624 N.W.2d 668
Misleading statements made knowingly and intentionally or with reckless disregard are stricken from an affidavit in support of search warrant, and the affidavit's remaining contents are examined to determine whether that information is sufficient to
establish probable cause.
Tibor v. Tibor
, 2001 ND 43,
623 N.W.2d 12
The presumptively correct child support guidelines are rebutted by a preponderance of the evidence establishing a noncustodial parent's reduced ability to provide support due to visitation travel expenses and a downward deviation from the guidelines
is in the best interests of the children. Until the guidelines define a "reduced ability to pay," an affidavit from the noncustodial parent testifying as to net income and anticipated travel expenses is
sufficient rebuttal evidence. A trial court may use its discretion to determine whether visitation travel expenses may be deducted directly from the child support payments or from the noncustodial parent's gross monthly income to calculate net
income for the purpose of determining the appropriate child support obligation, as the guidelines do not provide a method for calculating the deviation.
The child support guidelines may be rebutted by evidence of travel expenses for only court-ordered visitations, not for discretionary visitation travel expenses.
State v. Keeney
, 2001 ND 42,
625 N.W.2d 264
Conviction for delivery of a controlled substance is summarily affirmed under N.D.R.App.P. 35.1(a)(3).
Peek v. Berning
, 2001 ND 34,
622 N.W.2d 186
An award of rotating physical custody is only appropriate after finding the parents can communicate and cooperate sufficiently to ensure the child's best interests would not be jeopardized by an alternating custody schedule.
Reiser v. Reiser
, 2001 ND 6,
621 N.W.2d 348
In dividing the marital estate, fault causing deterioration of the marriage is a relevant factor under the Ruff-Fischer guidelines.
In awarding attorney fees in a divorce proceeding, fault is only relevant to the extent one party has unreasonably escalated the fees.
State v. Lee
, 2000 ND 215,
622 N.W.2d 432
Judgment of conviction for the felony offense of bail jumping is summarily affirmed under N.D.R.App.P. 35.1(a)(3).
Estate of Sagmiller
, 2000 ND 151,
615 N.W.2d 567
Speculation on whether a different mode of sale may have brought a better price does not support a finding of commercial unreasonableness.
A creditor is to demonstrate every aspect of a disposition is commercially reasonable, including "the method, manner, time, place and terms."
State v. Entzi
, 2000 ND 148,
615 N.W.2d 145
Parties who want voir dire or arguments of counsel recorded must request they be recorded.
A party's right to exercise peremptory challenges is not violated if the party uses a peremptory challenge to exclude a juror the trial court refused to excuse for cause and no biased jurors sit.
Generally, a trial court has broad discretion in selecting a method by which it impanels a jury.
A trial court's decision not to excuse a challenged juror for cause is reviewed under an abuse-of-discretion standard.
A sentencing hearing should be held in the county where the trial was held.
Houn v. ND Dept. of Transportation
, 2000 ND 131,
613 N.W.2d 29
A person arrested for driving under the influence who refuses to submit to a blood-alcohol test may cure that refusal by consenting to a test within a reasonable time after the refusal if the subsequent test will still be accurate, testing equipment
or facilities are still available, the subject has been in custody and under observation since the arrest, and the subsequent test will not result in substantial inconvenience or expense to law enforcement.
Lauer v. Lauer
, 2000 ND 82,
609 N.W.2d 450
An obligor need not show a material change in circumstances if the motion to modify child support is brought more than one year after entry of the support order.
Under the child support guidelines, income may not be imputed based on underemployment absent adequate evidence of the obligor's gross income from earnings and of the prevailing amounts earned in the community by persons with similar work history and
occupational qualifications.
In a contempt proceeding, the trial court may award attorney fees to the complainant.
Mikkelson v. ND Workers Comp. Bur.
, 2000 ND 67,
609 N.W.2d 74
A preexisting condition need not be active at the time of a compensable work injury to invoke the 1997 version of the aggravation statute.
To establish entitlement to disability benefits, the claimant must ensure that the claimant's doctor verify disability in a filed report containing the information required by statute.
Emter v. Emter
, 2000 ND 70,
617 N.W.2d 131
The trial court's property division and spousal support award upon remand from prior appeal was summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Principal Residential Mortgage v. Nash
, 2000 ND 21,
606 N.W.2d 120
Notice of a sheriff's sale must be served on a party who has been participating in a foreclosure action.
A judgment creditor is allowed to recover from the sheriff's sale proceeds only the amount of the debt and the costs of the action, including the costs of the judicial sale.
A judgment creditor is not entitled to collect attorney fees under a provision in a mortgage as part of the amount due or as costs under N.D.C.C. 32-19-10.
Tibor v. Tibor,
, 1999 ND 150,
598 N.W.2d 480
The statute governing change of residence of minor children applies where parents have joint custody.
Emter v. Emter
, 1999 ND 102,
595 N.W.2d 16
An adequate factual basis on the valuation of property is necessary for an appellate court to understand whether the trial court's distribution of marital property is clearly erroneous.
Property division and spousal support should be considered together.
Engebretson v. ND Workers Comp. Bureau
, 1999 ND 112,
595 N.W.2d 312
Under the 1995 law, a claimant can recover benefits if the injury was substantially aggravated or accelerated by the employment.
Speculative evidence is insufficient when tests could show whether claimant's employment substantially aggravated or accelerated an injury.
Green v. Green
, 1999 ND 86,
593 N.W.2d 398
In deciding custody, before a court can rely on a guardian ad litem's investigative report the parties must have an opportunity to call and cross-examine the guardian ad litem and persons contacted.
Olsen v. Koppy
, 1999 ND 87,
593 N.W.2d 762
An order refusing to appoint a private attorney to initiate a criminal prosecution is not appealable.
The Supreme Court's jurisdiction to issue a supervisory writ is discretionary.
State v. McKing
, 1999 ND 81,
593 N.W.2d 342
Theft is not a lesser included offense of robbery.
State v. Evans
, 1999 ND 70,
593 N.W.2d 336
A prosecutor's unobjected to jury argument is not reversible unless it is obvious error affecting a defendant's substantial rights.
During closing argument, counsel cannot rely or comment on facts not in evidence.
A prosecutor's statements of fact to the jury which are not warranted by the evidence are improper and are presumed to be prejudicial unless harmless in themselves.
State v. DeCoteau
, 1999 ND 77,
592 N.W.2d 579
The exigent circumstances exception to the warrant requirement exists only when there is probable cause and an emergency situation requiring swift action by police to prevent imminent danger to life or serious damage to property, or to forestall the
imminent escape of a suspect or destruction of evidence.
Fox v. Fox
, 1999 ND 68,
592 N.W.2d 541
Future disability payments are not marital property subject to equitable distribution, but are income which the court may consider to determine the ultimate economic circumstances of the parties in a divorce.
Trusts are includable as marital property subject to equitable distribution.
In distributing marital property, a court should try to disentangle the parties' financial affairs to reduce further conflict, litigation, and rancor between them.
A spouse is not required to deplete a property distribution in order to live.
Opp v. Source One Management, Inc.
, 1999 ND 52,
591 N.W.2d 101
Under the North Dakota Human Rights Act, a prima facie case of a sexually hostile work environment claim requires proof the employee belongs to a protected class, the employee was subject to unwelcome sexual harassment, the sexual harassment was
based on sex, the harassment affected a term, condition, or privilege of employment, and the employer knew or should have known of the harassment and failed to take proper remedial action.
Isolated incidents of simple teasing, offhand comments, gender-related jokes, or vulgar language lack sufficient severity or pervasiveness to alter the conditions of a victim's employment and create hostile work environment.
A prima facie case of retaliatory discharge requires evidence the employee opposed an unlawful employment practice, the employer took adverse employment action, and a causal connection.
A party's failure to secure a district court review of the clerk's taxation of costs bars review of the taxation of costs on appeal.
Woodworth v. Chillemi
, 1999 ND 43,
590 N.W.2d 446
When requested by a party under N.D.R.Civ.P. 59(j), a trial court should clarify obvious inconsistencies and ambiguities in its judgments.
Dethloff v. Dethloff
, 1999 ND 18,
592 N.W.2d 923
Second reinstated judgment of divorce summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
Saakian v. ND Workers Comp.
, 1998 ND 227,
587 N.W.2d 166
If a claimant is not unfairly surprised, had an opportunity to, and did, address the Workers Compensation Bureau's evidence on a disability question not precisely set forth in the specification of issues for an administrative hearing, the claimant
has adequate notice that entitlement to disability benefits is an issue to be determined at the hearing on compensability of the claim.
Res judicata only prohibits relitigation of a claim or issue resolved by a final administrative decision.
The Bureau's adoption and amendment of an administrative law judge's recommendation does not transform the Bureau into a "hearing officer" for purposes of N.D.C.C. 28-32-12.2(1).
Krizan v. Krizan
, 1998 ND 186,
585 N.W.2d 576
A change in custody is not warranted where there is no
significant change of circumstances from the date of
the original custody determination.
A trial court may not retroactively modify child
support obligations when visitation is extended, but
there is no permanent change in custody.
Party challenging denial of attorney's fees and costs
must affirmatively establish an abuse of discretion by
the trial court.
Failing to confer with opposing counsel before setting
hearing dates with the trial court is not a
sanctionable offense in the absence of a court rule or
court order requiring counsel to confer.
Lee v. ND Workers Comp. Bur.
, 1998 ND 184,
595 N.W.2d 602
Bureau's order terminating disability and vocational
rehabilitation benefits summarily affirmed under
N.D.R.App.P. 35.1(a)(5).
Nelson v. Nelson
, 1998 ND 176,
584 N.W.2d 527
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.
State v. Kinsella
, 1998 ND 155,
583 N.W.2d 376
A state which accepts an out-of-state probationer under the
Interstate Compact for Supervision of Parolees and Probationers
may impose its own conditions on the probationer.
Wagner v. Wagner
, 1998 ND 117,
579 N.W.2d 207
Findings of fact which are not challenged on appeal are
presumptively correct.
Sherman v. ND Workers Comp. Bureau
, 1998 ND 97,
578 N.W.2d 517
When the district court fails to follow recent controlling
precedent and does not undertake the legislatively mandated
review under N.D.C.C. ch. 65-10 and ch. 28-32, Supreme Court may
reverse and remand to the district court for consideration on the
merits.
Gietzen v. Gietzen
, 1998 ND 70,
575 N.W.2d 924
A finding of a significant change of circumstances requiring
modification of custody based in part on custodial parent's move
to another community to live with another person, and in part on
a mature child's stated preference,is not clearly erroneous.
State v. Serr
, 1998 ND 66,
575 N.W.2d 896
Supreme Court has jurisdiction over appeal by State from order
dismissing conspiracy charges against defendants after a
preliminary hearing.
Possession of a controlled substance can be an overt act
indicating conspiracy to deliver a controlled substance.
A conspiratorial agreement cannot be based solely upon proof of a
buyer-seller relationship.
Evidence of association with other "conspirators," or presence at
scene of crime, is not sufficient by itself to infer a
conspiratorial agreement.
Dethloff v. Dethloff
, 1998 ND 45,
574 N.W.2d 867
Entry of a default divorce judgment dividing property is an
appropriate exercise of a trial court's inherent power to
sanction where the trial court found the defendant had used delay
and evasiveness as an intentional litigation strategy.
Sanctions must be reasonably proportionate to the procedural
misconduct.
In a default divorce, a trial court must, absent an agreed
settlement, require
proof of the value of the marital estate and explain why the
division is equitable.
State v. Conley
, 1998 ND 5,
574 N.W.2d 569
A prison inmate was "in custody" for Miranda purposes when
interviewed by prison officials at an investigatory meeting and
an adjustment committee hearing, thus making inadmissible at his
later criminal trial those incriminating statements he made
without benefit of Miranda warnings.
Withey v. Hager
, 1997 ND 225,
571 N.W.2d 142
A parent, bringing a motion to modify a child support obligation
within two months after entry of an amended judgment continuing
support at a rate set more than one year earlier, must
demonstrate a material change of circumstance.
A trial court's modification of the parties' obligation for the
children's medical expenses must be more than a year from the
previous child support judgment, or requires a material change of
circumstances.
Pavlicek v. Allison
, 1997 ND 219,
575 N.W.2d 224
Award of attorney fees on a child support determination affirmed
under N.D.R.App.P. 35.1(a)(4).
Nelson v. Gillette
, 1997 ND 205,
571 N.W.2d 332
A political subdivision employee's sexual abuse of a child in the
custody of Social Services may constitute an act within the
employee's scope of employment under NDCC 32-12.1-03 & 04. A
stipulation between a claimant and an employee that released the
employee from liability also released the County from vicarious
liability. Summary judgment on a claim of negligent
supervision by the County was precluded because the appellant
raised genuine issues of disputed fact.
Boehm v. Berger
, 1997 ND 208,
575 N.W.2d 224
Trial court's denial of motion for new trial and award of damages
summarily affirmed under N.D.R.App.P. 35.1(a) (1), (2), and
(4). Double costs assessed for failure to furnish record of
grounds that trial court used to deny motion for new trial.
Fuhrman v. ND Workers Comp.
, 1997 ND 191,
569 N.W.2d 269
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.
Baker v. Baker
, 1997 ND 135,
566 N.W.2d 806
The trial court's finding that a former husband was "cohabiting
in an informal marital relationship," thereby ending the former
wife's spousal support obligation under the divorce decree, was
not clearly erroneous.
Towne v. Dinius
, 1997 ND 125,
565 N.W.2d 762
The purchaser of a vehicle can sue the seller for fraud and
breach of warranty based upon statements made by the seller's
agent in negotiations.
Statements made during contract negotiations which are offered to
prove the terms of the contract are not hearsay.
Ostafin v. State
, 1997 ND 102,
564 N.W.2d 616
Trial court's determination that plea agreement in which
defendant waived good time reduction was illegal affirmed. Trial
court's decision to allow defendant to choose whether to have
court correct illegal sentence or withdraw guilty plea reversed
and case remanded to correct illegal sentence to conform to
intent of original plea bargain.
Messer v. Bender
, 1997 ND 103,
564 N.W.2d 291
The Supreme Court will not consider issues not raised or
preserved below.
Hamich, Inc. v. State ex rel. Clayburgh
, 1997 ND 110,
564 N.W.2d 640
The Tax Commissioner had the statutory authority to require two
North Dakota corporations which conducted no out-of-state
business to file corporate income tax returns for tax years 1986
through 1991 using the single entity method rather than the
combined report method they preferred. This requirement was not
contrary to public policy and did not violate the taxpayers'
equal protection rights.
Interest of E.H.
, 1997 ND 101,
564 N.W.2d 281
In a paternity action, the trial court erred in using income
averaging, rather than the obligor's actual annual net income, to
determine child support arrears.
L.C. v. R.P.
, 1997 ND 96,
563 N.W.2d 799
A stipulation to dismiss a lawsuit against a servant releases
claims against the master for vicarious liability arising from
the servant's acts.
In an action alleging the church hierarchy assumed a fiduciary
duty to a parishioner for sexual misconduct by a pastor, summary
judgment was proper where the parishioner presented no evidence
to show that the church hierarchy assumed a fiduciary duty to the
parishioner.
Kuller v. Kuller
, 1997 ND 90,
569 N.W.2d 288
Award of spousal support of summarily affirmed under N.D.R.App.P.
35.1.
Bernhardt v. Bernhardt
, 1997 ND 80,
561 N.W.2d 656
On appeal from a motion to modify child support, the trial
court's decision was clearly erroneous because it made no finding
of disability and failed to impute income as otherwise required,
failed to award increased support because of an erroneous view of
the law, and made other errors as acknowledged by the parties.
Tabert v. ND Dept. of Transportation
, 1997 ND 39,
560 N.W.2d 883
Foundational evidence was sufficient to admit blood-test results
at hearing on driver's license suspension.
Orgaard v. Orgaard
, 1997 ND 34,
559 N.W.2d 546
Holding the trial court's award of spousal support is not clearly
erroneous in view of spouse's monthly expenses and limited
potential for future employment.
Frafjord v. Ell
, 1997 ND 16,
558 N.W.2d 848
The trial court did not err in treating this action as an
original custody determination, not requiring a showing of
changed circumstances, when the parents' prior custody
stipulation had not been approved or incorporated in a judicial
order or decree.
The trial court did not abuse its discretion in denying a motion
for a new trial or for relief from the judgment under Rules 59
and 60, N.D.R.Civ.P., when the moving party presented no evidence
to support his conclusory allegations of misconduct by the trial
court and opposing counsel.
Holzer v. Jochim
,
557 N.W.2d 57 (N.D. 1996)
A successor to the judge who tried a civil action for
damages erred by redetermining liability
issues, after reviewing the trial transcript, without
affording the parties an opportunity to retry the
case.
Bland v. Commission on Medical Competency
,
557 N.W.2d 379 (N.D. 1996)
The Administrative Agencies Practice Act does not apply
to the temporary suspension of a physician's license
under N.D.C.C. 43-17-32.1. The Board's decision to
temporarily suspend Bland's license was reasonable
and not arbitrary.
T. S. v. J. L.
,
562 N.W.2d 104 (N.D. 1996)
Child support order summarily affirmed under
N.D.R.App.P. 35.1
Kraft v. Kraft
,
554 N.W.2d 657 (N.D. 1996)
In acting on a noncustodial parent's motion for a
change of child custody because of domestic violence in the
custodial parent's household, the trial court must analyze
whether the statutory presumption against placing custody with a
parent who has been violent in the past, but not recently, is
overcome by evidence of ongoing violence in the custodial
parent's present household.
Vetter v. ND Workers Comp. Bureau
,
554 N.W.2d 451 (N.D. 1996)
Any party filing specifications of error in an appeal
from an administrative agency decision must comply with Section
28-32-15(4), N.D.C.C., by identifying what matters are truly at
issue with sufficient specificity to fairly apprise the agency,
other parties, and the court of the particular errors claimed.
Chadwick v. Moore
,
551 N.W.2d 783 (N.D. 1996)
The police officer had probable cause to arrest a
motorcyclist for DUI.
State v. O'Rourke
,
544 N.W.2d 384 (N.D. 1996)
Moran v. ND Dept. of Trans.
,
543 N.W.2d 767 (N.D. 1996)
Basin Electric Power Coop. v. ND Workers Comp.,
,
541 N.W.2d 685 (N.D. 1996)
State v. Olsen
,
540 N.W.2d 149 (N.D. 1995)
State v. Hawley
,
540 N.W.2d 390 (N.D. 1995)
Johnson v. ND Workers Comp.
,
539 N.W.2d 295 (N.D. 1995)
Hager v. Hager
,
539 N.W.2d 304 (N.D. 1995)
Axtman v. Moore, ND Dept. Transportation
,
534 N.W.2d 802 (N.D. 1995)