Estate of Thompson
, 2008 ND 144,
752 N.W.2d 624
The existence of an oral contract is a question of fact.
An agreement for the sale of real property is invalid unless the agreement is in writing and subscribed by the party to be charged.
In the absence of a written agreement, a court may compel specific performance of any agreement for the sale of real property if there is part performance.
Part performance of an oral contract for the sale of land which exempts the contract from the statute of frauds and entitles a party to specific performance must be proven by evidence that it is clear and unequivocal and which leaves no doubt as to
the terms, character, and existence of the contract.
Suelzle v. ND Dept. of Transportation
, 2008 ND 102,
Revocation of driving privileges summarily affirmed under N.D.R.App.P. 35.1(a)(5).
Sabo v. Keidel
, 2008 ND 41,
745 N.W.2d 661
Summary judgment may be appropriate in a case regarding an unambiguous trust.
Extrinsic evidence is not admissible to contradict the terms of an unambiguous trust instrument.
A life estate holder's interest in property includes both the right to possession and use including the right to profits generated by the property during the tenant's life.
State v. Kochel
, 2008 ND 28,
744 N.W.2d 771
Whether an individual has a reasonable expectation of privacy is reviewed de novo.
Ritter, Laber & Assoc. v. Koch Oil
, 2007 ND 163,
740 N.W.2d 67
A party seeking reformation of a written agreement must prove by clear and convincing evidence the document does not fully or truly state the agreement the parties intended to make.
The party seeking reformation of an agreement on the basis of mutual mistake must show that, when the agreement was executed, both parties intended to say something different from what was said in the document.
In a class action lawsuit, the district court may award payment to the class representatives. Factors in making the decision include the risk to class representatives in bringing suit, the time and effort spent by the class representatives, the
duration of the litigation, the time and effort expended by the representatives in pursuing the litigation, and the degree to which the class has benefitted from the representatives' actions.
The districtr court must consider the factors listed under N.D.R.Civ.P. 23(p)(5) in awarding attorney fees in a class action lawsuit.
The district court is considered an expert in determining an award of attorney fees, and its decision will not be overturned on appeal absent a clear abuse of discretion.
In awarding attorney fees in a class action lawsuit, the court may consider not only the available settlement fund but also the amount of actual claims on the fund.
Good Bird v. Twin Buttes School District
, 2007 ND 103,
733 N.W.2d 601
The party resisting a summary judgment motion may not simply rely upon the pleadings or upon unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material
fact.
A contract is either express or implied. An express contract is one the terms of which are stated in words. An implied contract is one the existence and terms of which are manifested by conduct. Under contracts implied in fact, the court merely
attempts to determine from the surrounding circumstances what the parties actually intended.
Public employees who have legitimate expectations of continued government employment possess property interests of which they cannot be deprived without due process.
Olsson v. Workforce Safety and Insurance
, 2007 ND 58,
734 N.W.2d 342
A district court judgment affirming the decision of Workforce Safety and Insurance is summarily affirmed under N.D.R.App.P. 35.1(a)(5).
Fettig v. Workforce Safety and Insurance
, 2007 ND 23,
728 N.W.2d 301
To trigger the civil penalties for making a false statement in connection with a claim for WSI benefits, WSI must prove: (1) there is a false claim or statement; (2) the false claim or statement is willfully made; and (3) the false claim or statement
is made in connection with any claim or application for benefits.
Based upon the civil penalty sought, there are two tests to determine the "materiality of a false statement." If WSI seeks reimbursement for benefits paid, the level of materiality required is proof by WSI that the false claim or false statement
caused the benefits to be paid in error. If WSI seeks only forfeiture of future benefits, however, no such causal connection is required.
Griggs v. Fisher
, 2006 ND 255,
725 N.W.2d 201
Before addressing the issue of sufficiency of the evidence to support a jury verdict, a losing party must move for judgment as a matter of law under N.D.R.Civ.P. 50 or for a new trial under N.D.R.Civ.P. 59.
State v. Doohen
, 2006 ND 239,
724 N.W.2d 158
A warrantless search is unreasonable unless it falls within a recognized exception to the warrant requirement.
Under the automobile exception, law enforcement may search for illegal contraband without a warrant when probable cause exists.
A police officer may draw inferences based on his own experience in deciding whether probable cause exists.
Probable cause demands not that an officer be sure or certain but only that the facts available to a reasonably cautious individual would warrant a belief that certain items may be contraband or useful as evidence of a crime.
Lee v. Buehner
, 2006 ND 204,
725 N.W.2d 588
A judgment awarding damages in a personal injury action is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).
Interest of F.F.
, 2006 ND 47,
711 N.W.2d 144
A court may terminate parental rights on finding the child (1) is deprived and (2) has been in foster care for at least four hundred fifty of the previous six hundred sixty nights.
Beaudoin v. South Texas Blood & Tissue Center
, 2005 ND 120,
699 N.W.2d 421
A nonresident defendant must have sufficient minimum contacts with North Dakota so the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice.
Defendants cannot be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts, or from the unilateral activity of a third party.
North Dakota courts may exercise specific personal jurisdiction over nonresident defendants only if they purposefully directed their activities toward North Dakota and the cause of action arises out of or relates to the defendant's activities in the
State.
A defendant's conscious and repeated decision to ship a product to North Dakota constitutes sufficient minimum contacts required to ground personal jurisdiction.
Rule 60(b)(i), N.D.R.Civ.P., which establishes grounds for vacating a default judgment, permits relief where a party itself has erred.
A trial court's denial of a motion to vacate a default judgment based on a misinterpretation and misapplication of our law must be reversed as an abuse of discretion.
Riverside Park Condominiums Unit Owners Association v. Lucas
, 2005 ND 26,
691 N.W.2d 862
Actions of a condominium's board of directors are reviewed under the business-judgment rule.
The power of a condominium's governing body to make rules, regulations, or amendments to the declaration or bylaws is limited by a determination of whether the action is unreasonable, arbitrary, capricious, or discriminatory.
The reasonableness of a condominium use restriction is determined by reference to the common interest development as a whole.
A trial court's decision to grant or deny a request for a declaratory judgment will not be set aside unless the court has abused its discretion.
The district court has broad discretion in imposing sanctions for discovery violations, and its decision will be reversed only upon a showing of an abuse of discretion.
The trial court may impose an appropriate sanction for filing a motion for an improper purpose.
A party waives an issue by not providing supporting argument, and without supportive reasoning or citations to relevant authorities, an argument is without merit.
State v. Stockert
, 2004 ND 146,
684 N.W.2d 605
A judge is required to disqualify if the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceedings.
When personal knowledge about a matter has been obtained by a judge within another legal proceeding, disqualification is not called for.
When deciding whether or not to recuse, a judge must determine whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is
impaired.
In deciding whether a judge should be disqualified because of a person's involvement in a judicial campaign, the relevant factors include: 1) the significance of the person's campaign involvement; 2) whether the campaign is under way or how recently
it ended; 3) whether there is an ongoing relationship between the person and the judge; 4) the significance of the person's involvement in the current case, including the closeness or remoteness of the involved individual to the case; 5) whether the
issue was promptly raised; and 6) evidence of judicial bias.
State v. Nordahl
, 2004 ND 106,
680 N.W.2d 247
A district court does not abuse its discretion when it revokes probation for failure to pay restitution without holding a hearing when a defendant agreed to restitution as part of a plea agreement.
Bice v. Petro-Hunt, L.L.C.
, 2004 ND 113,
681 N.W.2d 74
An order certifying a class action under N.D.R.Civ.P. 23 is appealable, but a trial court's decision to certify a class action will not be overturned on appeal unless the trial court abused its discretion.
In determining whether a class action will provide a fair and efficient adjudication of the controversy, the trial court is not required to specifically address each of the thirteen factors listed in N.D.R.Civ.P. 23(c)(1), but must weigh the
competing factors, none of which is predominant.
Ritter, Laber & Assoc. v. Koch Oil
, 2004 ND 117,
680 N.W.2d 634
A claim for conversion may arise under the same facts as a claim for a breach of contract.
The gist of a claim for conversion is not the rightful acquisition of the property, but the wrongful possession or deprivation of that property.
A party is not entitled to recover under unjust enrichment when there is an express contract between the parties relative to the same subject matter.
A motion to amend a complaint is addressed to the discretion of a trial court.
Beaudoin v. South Texas Blood & Tissue Center
, 2004 ND 49,
676 N.W.2d 103
Removing, preserving, and delivery of body parts involves science or art requiring special skills not ordinarily possessed by lay persons and is governed by the two-year statute of limitations for malpractice.
A process server's service of process upon a corporation's Executive Office Manager will be deemed valid if a corporate employee identifies the Executive Office Manager as a proper person to accept service, the process server reasonably relies on
that identifying representation, the Executive Office Manager served is of sufficient character and rank to make it reasonably certain that the defendant will be apprised of the service made, and the service results in actual delivery to a person
responsible for protecting the corporation's interests in litigation.
Krank v. Krank
, 2003 ND 146,
669 N.W.2d 105
In making its custody decision, the trial court is not required to make specific findings of fact on each factor under N.D.C.C. 14-09-06.2(1), but the court should consider all relevant factors in making the decision.
Ramey v. Twin Butte School Dist.
, 2003 ND 87,
662 N.W.2d 270
To establish a prima facie case of discrimination for failure-to-hire under the North Dakota Human Rights Act, a plaintiff must show: (1) she is a member of a protected class under the Human Rights Act; (2) she sought and was qualified for the
position; (3) she suffered an adverse employment decision; and (4) others not in the protected class were treated more favorably.
Malchose v. Kalfell
, 2003 ND 75,
664 N.W.2d 508
A trial court may determine a document is authentic based on the proponent's chain of custody testimony and the document's internal indicia of trustworthiness.
The public record exception to the hearsay rule applies to all records and data compilations of a public agency, including those not generally accessible to the public. The availability of a custodian or other witness with knowledge of the making of
the record is not a requirement for admissibility.
Wanner v. N.D. Workers Comp. Bureau
, 2002 ND 201,
654 N.W.2d 760
While a failure to report income from work is material to the Bureau's ability to determine a claimant's entitlement to benefits and to calculate the amount of benefits, a failure to report money received apart from work is not similarly material
Absent a statutory or administrative definition of "work," an ordinary person would reasonably expect to have to report as work only activities performed in regular employment by others for remuneration, or showing an ability to regularly perform a
gainful occupation, and would not ordinarily expect to have to report casual activities not done for remuneration and not performed for an employer.
Adoption of S.A.L.
, 2002 ND 178,
652 N.W.2d 912
A parent can effectively waive the right to court-appointed counsel in a parental termination proceeding. An effective waiver must be a voluntary, knowing, and intelligent relinquishment of the benefits of counsel.
State v. Aune
, 2002 ND 176,
653 N.W.2d 53
A trial court may order a condition of probation requiring the probationer to stay away from a specific place.
Interest of K.S. and A.S.
, 2002 ND 164,
652 N.W.2d 341
To terminate parental rights under N.D.C.C. 27-20-44(1)(b)(1), the juvenile court must find clear and convincing evidence that: (1) the child is a deprived child; (2) the conditions and causes of the deprivation are likely to continue; and (3) the
child is suffering, or will probably suffer, serious physical, mental, moral, or emotional harm.
State v. Aune
, 2001 ND 106,
629 N.W.2d 585
The trial court's judgment of conviction for a violation of N.D.C.C. 12.1-10-05 is affirmed under N.D.R.App.P. 35.1(a)(1).
Dvorak v. State
, 2001 ND 50,
625 N.W.2d 264
An appeal from denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6).
Hurt v. Hurt
, 2001 ND 13,
621 N.W.2d 326
Evidence of domestic violence which does not trigger the statutory presumption under N.D.C.C. 14-09-06.2(1)(j) remains one of the best interest factors to be considered by the court.
A guardian ad litem's recommendation on child custody is not conclusive.
A trial court's custody determination is a finding of fact that is not set aside on appeal unless clearly erroneous.
Clark v. State
, 2001 ND 9,
621 N.W.2d 576
Under Apprendi v. New Jersey, 120 S.Ct. 2348, 2355 (2000), any fact, other than prior convictions, that increases the penalty for a crime beyond the prescribed statutory maximum must be found by a jury and proved beyond a reasonable doubt.
State v. Nowik
, 2000 ND App 1,
624 N.W.2d 351
The appellant's conviction for driving a vehicle with a suspended license is summarily affirmed by the Court of Appeals.
No person has a constitutional right to operate a motor vehicle on the roads of this state without a valid driver's license.
ND Workers Comp. Bureau v. General Investment Corp.
, 2000 ND 196,
619 N.W.2d 863
Section 38-09-01, N.D.C.C., generally reserves fifty percent of all oil, natural gas, or minerals whenever the State transfers land owned by the State.
The Workers Compensation Bureau may adjust or compromise claims upon defaults in the payment of premiums or premium installments.
A quitclaim deed executed by the State reflecting a compromise and a settlement releasing the Workers Compensation Bureau's doubtful claim to land, and does not reflect a sale resulting in a transfer of land.
Tishmack, Stern v. Tishmack
, 2000 ND 103,
611 N.W.2d 204
A trial court's determination of whether a custodial parent's requested move is in the best interests of the child is a finding of fact which will not be reversed unless it is clearly erroneous.
Reid v. Cuprum SA, de C.U.
, 2000 ND 108,
611 N.W.2d 187
To invoke the doctrine of equitable tolling of a statute of limitations, a plaintiff must have several legal remedies and reasonably and in good faith pursue one of the remedies, thereby tolling the limitation for the other remedies.
State v. Dvorak
, 2000 ND 6,
604 N.W.2d 445
A specific on-the-record colloquy is not necessary to establish the validity of a defendant's waiver of the right to counsel if the record establishes the defendant voluntarily, knowingly, and intelligently waived the right to counsel.
Miller v. Kloeckner
, 1999 ND 190,
600 N.W.2d 881
A general conveyance of land, without any exception or reservation of the minerals, carries with it the minerals as well as the surface.
A warranty deed which describes the land conveyed and excepts and reserves one-half of the minerals to the grantors, conveys the surface and one-half of the minerals.
The Duhig rule, under which an undivided interest in minerals reserved by a grantor passes under a deed to the extent necessary to give the grantee the undivided interest purported to be conveyed by the deed, applies to a deed with a limited warranty
or with no warranty, as well as to a deed with a general warranty.
Vernon v. ND Workers Comp.
, 1999 ND 153,
598 N.W.2d 139
The Workers Compensation Bureau must adequately explain its rationale for rejecting a hearing officer's recommendation.
Before terminating a claimant's disability benefits, due process requires the bureau to give the claimant pre-termination notice of its intent to terminate benefits, a summary of the evidence, and an opportunity to respond.
Clark v. State
, 1999 ND 78,
593 N.W.2d 329
An application for post-conviction relief will be dismissed for misuse of process (1) if the defendant has inexcusably failed to raise an issue in a proceeding leading to judgment of conviction; (2) if the defendant inexcusably failed to pursue on
direct appeal an issue raised and litigated in a proceeding leading to judgment of conviction; or (3) if the defendant inexcusably failed to raise an issue in an initial post-conviction application.
Hibl v. ND Workers Comp. Bureau
, 1998 ND 198,
586 N.W.2d 167
The Bureau weighs the credibility of conflicting medical evidence, but the Bureau must consider the entire record, clarify inconsistencies, and explain its reasons for disregarding medical evidence favorable to the claimant.
Diversified Financial Systems v. Binstock
, 1998 ND 61,
575 N.W.2d 677
In ruling on a motion for judgment notwithstanding the verdict,
the trial court must view the evidence in the light most
favorable to the litigant against whom the motion is made,
without weighing the evidence or judging the credibility of the
witnesses, to determine whether or not the evidence leads to but
one reasonable conclusion.
Interest of R.D.B.
, 1998 ND 15,
575 N.W.2d 420
When a child and his parents knowingly, intelligently, and
voluntarily waive their right to counsel in the juvenile court
proceedings, the juvenile court need not appoint counsel.
Permanent impairment of vision constitutes "serious bodily
injury" under the aggravated assault statute, N.D.C.C.
12.1-17-02.
A person who engages in mutual combat is not justified in using
force and may not claim self-defense.
State v. Kitchen
, 1997 ND 241,
572 N.W.2d 106
When the entryway to a home is impliedly open to use by the
public, the residents have no reasonable expectation of privacy
in the entryway.
State v. Clark
, 1997 ND 199,
570 N.W.2d 195
Under Rule 606(b), N.D.R.Ev., it is improper for a court to
consider juror affidavits about the mental processes or reasoning
of the jurors in arriving at a decision. The fact a shooting
was intentional does not preclude a verdict of manslaughter if
the shooting resulted from an unreasonable belief in the
necessity of using force. There is a right to privacy inherent
in the right to consult with counsel. A spouse seeking to
assert the husband-wife privilege of Rule 504, N.D.R.Ev., must
have acted in reliance upon an expectancy of confidentiality that
is reasonable under all the circumstances. Rule 504,
N.D.R.Ev., does not preclude the admission of a spouse's
statements to another about an allegedly confidential
communication between an accused and his or her spouse. To
prevail on a motion for a new trial on the ground of newly
discovered evidence, the defendant must show the weight and
quality of the newly discovered evidence would likely result in
an acquittal. A social worker, who is not a psychologist and
not licensed or believed by the defendant to be licensed to
practice medicine, is not a psychotherapist whose testimony the
defendant could exclude under Rule 503, N.D.R.Ev.
Pechtl v. Conoco, Inc.
, 1997 ND 161,
567 N.W.2d 813
An employer that does not retain control of the method, manner,
and operative details of the work of its independent contractor
does not owe a duty to the independent contractor's employees
under Restatement (Second) of Torts 414.
Schwartz v. Schwartz
, 1997 ND 91,
563 N.W.2d 391
A trial court's unequal property division for a divorce is not
clearly erroneous when it is satisfactorily explained.
Continental Resources, Inc. v. Farrar Oil Company
, 1997 ND 31,
559 N.W.2d 841
A horizontal well, authorized by a forced pooling order of the
Industrial Commission, that penetrates the subsurface formation
of another's oil and gas leasehold within the forced pool is not
a subsurface trespass.
State v. Jesfjeld
, 1997 ND 23,
559 N.W.2d 543
An officer's investigatory stop could be based on an objectively
reasonable office note that erroneously indicated an individual's
probation status.
State v. Asbridge
,
555 N.W.2d 571 (N.D. 1996)
In a prosecution for driving under the influence of
alcohol, the state toxicologist's individualized certificate,
which incorporated information contained in the attached Form
104 and Analytical Report, satisfied the foundational
requirements for admission of the defendant's blood-test result
under Section 39-20-07(5), N.D.C.C. The trial court did not
abuse its discretion in refusing to grant a mistrial when the
arresting officer testified he informed the defendant of his
Miranda rights and the defendant asked to call an
attorney. The trial court did not abuse its discretion in
refusing to admit the state toxicologist's deposition testimony
in another criminal case as the statement of a party opponent's
agent or servant under Rule 801(d)(2), N.D.R.Ev.
State v. Kalina
,
544 N.W.2d 176 (N.D. 1996)
State v. Zimmerman
,
539 N.W.2d 49 (N.D. 1995)
State v. Walch
,
499 N.W.2d 602 (N.D. 1993)
Mallberg v. Associate Realty & Investments, Inc.
,
485 N.W.2d 353 (N.D. 1992)