State v. Rodriquez
, 2008 ND 157,
When time spent in custody is credited toward an unrelated charge, the defendant is not entitled to have that time spent in custody applied to another sentence.
State v. Torkelsen
, 2008 ND 141,
752 N.W.2d 640
Any evidence obtained as a result of illegally acquired evidence must be suppressed, unless it was not produced by exploiting the illegally acquired information.
In some cases voluntary consent to search may purge the taint of unlawful police activity.
There must be separate probable cause to issue a warrant that authorizes a nighttime search. If there is not separate probable cause to authorize a nighttime search, the evidence should be excluded unless an exception to the exclusionary rule
applies.
A defendant must unequivocally invoke the right to represent himself, unless his conduct rises to the level of a functional equivalent of a voluntary waiver of the right to counsel.
A defendant must make a timely request to represent himself, and it is within the trial court's discretion to grant a request made after the trial begins.
Weigel v. Lee
, 2008 ND 147,
752 N.W.2d 618
A decedent's children are able to seek recovery of non-economic damages in a wrongful death action.
State v. Scholes
, 2008 ND 146,
753 N.W.2d 377
The validity of a search warrant is reviewed using the totality-of-the-circumstances approach, considering all of the information for probable cause together and testing affidavits executed in support of a warrant in a commonsense and realistic
fashion.
Suppression of evidence is not required for a violation of N.D.R.Crim.P. 41 absent a showing that the defendant was prejudiced, or that the violation was an intentional and deliberate disregard of the rule, or that the violation offends the Fourth
Amendment.
To succeed on a challenge to a search warrant based on a claim that law enforcement officers omitted information in the supporting affidavit, the defendant must show: (1) that law enforcement officers 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.
Alerus Financial, N.A. v. Western State Bank
, 2008 ND 104,
750 N.W.2d 412
In construing a trust agreement, the court's primary objective is to ascertain the settlor's intent.
A power of attorney is an instrument in writing authorizing another to act as one's agent, and the agent holding the power of attorney is the attorney-in-fact.
An agency relationship involves both a contractual and a fiduciary relationship, and the interpretation of an agent's authority is governed by the rules for construing contracts, except to the extent the fiduciary relationship requires a different
rule.
Overboe v. Brodshaug
, 2008 ND 112,
751 N.W.2d 177
A motion to vacate a default judgment is addressed to the sound discretion of the district court.
A statute of limitation does not defeat defensive recoupment, which must arise out of the same transaction that is the subject matter of the plaintiff's action and can only be used to reduce or avoid the plaintiff's recovery.
Interest before maturity is compensation for the use of money and is regulated by usury statutes, while interest allowed after maturity is considered compensation for damages for the wrongful detention of money and is not regulated by the usury
statutes.
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.
Riemers v. State of North Dakota
, 2008 ND 101,
750 N.W.2d 407
When the Supreme Court denies a petition to review a Court of Appeals decision, the decision becomes final and will not be differently determined on a subsequent appeal in the same case.
A trial court is considered an expert in determining the amount of attorney fees, and its decision concerning the amount and reasonableness of the attorney's fees will not be overturned on appeal absent a clear abuse of discretion.
Paralegal costs may be included in reasonable attorney's fees.
Guardianship/Conservatorship of D.M.O.
, 2008 ND 100,
749 N.W.2d 517
The Supreme Court will dismiss an appeal when issues become moot or academic and there is no actual controversy left for our determination.
An actual controversy no longer exists when the issue has been rendered moot by a lapse of time, or the occurrence of related events which make it impossible for a court to grant effective relief.
Riemers v. Mahar
, 2008 ND 95,
748 N.W.2d 714
A public figure is prohibited from recovering damages for defamatory criticism unless there is clear and convincing evidence that the statements were made with actual malice.
Summary judgment is appropriate against a party who fails to establish the existence of a factual dispute on an essential element of his claim and on which he will bear the burden at trial.
State v. Curtis
, 2008 ND 93,
748 N.W.2d 709
A criminal conviction will be reversed for insufficient evidence only when, after viewing the evidence and all reasonable evidentiary inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty
beyond a reasonable doubt.
Threats are statements by which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.
Hoover v. Director, N.D. Dept. of Transportation
, 2008 ND 87,
748 N.W.2d 730
Eyewitness testimony is not necessary to establish reasonable grounds to believe a person was driving under the influence; circumstantial evidence is sufficient.
If a police officer has probable cause to arrest a suspect, the officer has the right to accompany and monitor the movements of the suspect.
State v. Schwab
, 2008 ND 94,
748 N.W.2d 696
Once a blood alcohol test report is admitted into evidence, a court abuses its discretion by refusing to permit a DUI defendant to examine the analyst who performed the chemical testing, if the analyst is present at court.
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.
City of Fargo v. Levine
, 2008 ND 64,
747 N.W.2d 130
The government will be ordered to produce source code for the Intoxilyzer only if the defendant establishes that the code is material and that the code is within the possession, custody, or control of the government.
State v. Gendron
, 2008 ND 70,
747 N.W.2d 125
Restitution orders will be affirmed unless the district court acted outside the limits set by statute, which is similar to an abuse of discretion standard.
The prosecution has the burden of proving the amount of restitution by a preponderance of the evidence.
Evidentiary imprecision on the amount of damages does not preclude recovery by restitution.
Erickson v. Brown
, 2008 ND 57,
747 N.W.2d 34
A complaint is construed in the light most favorable to the plaintiff and may not be dismissed for failure to state a claim unless it discloses with certainty the impossibility of proving a claim upon which relief can be granted.
A claim for fraud applies to parties to a contract while a claim for deceit applies where there is no contract between the parties.
A promise made without any intention of performing may be deceit.
Legal issues entitling a party to a jury trial are tried to a jury before disposition of equitable issues triable to the court, and whenever the issues are so interrelated that a decision in the nonjury portion might affect the decision of the jury
portion, the jury portion must be tried first.
There is no implied covenant of good faith and fair dealing in the employment context.
Nonprejudicial errors constitute harmless error and are not grounds for reversal.
White v. Altru Health System
, 2008 ND 48,
746 N.W.2d 173
The medical malpractice statute in effect at the time of injury applies.
State v. Jacobsen
, 2008 ND 52,
746 N.W.2d 405
An order revoking probation is reviewed under a two-step analysis, determining (1) whether the factual finding of a probation violation was clearly erroneous and (2) whether the district court abused its discretion when it decided revocation of
probation was warranted.
Although the State generally has the burden of proving by a preponderance of the evidence that the defendant violated the terms of probation, when revocation proceedings are triggered by a failure to pay restitution, the defendant has the burden to
raise and prove an inability to pay restitution as ordered by the court.
A sentencing court generally may revoke probation and impose incarceration for failure to pay restitution only after considering the reason for nonpayment and whether there are adequate alternative forms of punishment, but this limitation does not
apply when restitution is ordered as part of a plea agreement.
Makedonsky v. ND Department of Human Services
, 2008 ND 49,
746 N.W.2d 185
An applicant for Medicaid benefits has the burden of proving eligibility.
An applicant for Medicaid benefits may be required to initiate an appropriate legal action to make an asset available for purposes of calculating eligibility for Medicaid benefits.
An attorney in fact has a relation of personal confidence with the principal and is deemed a trustee, and all transactions between a trustee and a beneficiary are presumed to be without sufficient consideration and under undue influence.
Young v. Young
, 2008 ND 55,
746 N.W.2d 153
To modify visitation, the moving party must establish a material change of circumstances has occurred since the prior visitation order and it is in the best interests of the child to modify the order.
A material change in circumstances sufficient to amend a visitation order is similar to, but is distinct from, a material change in circumstances sufficient to change custody.
City of Minot v. Keller
, 2008 ND 38,
745 N.W.2d 638
For reasonable and articulable suspicion to stop a vehicle, officer to officer communications are presumptively reliable.
People to Save the Sheyenne River v. Dept. of Health
, 2008 ND 34,
744 N.W.2d 748
The Health Department's decision to modify a North Dakota Pollutant Discharge Elimination System permit will not be reversed on appeal unless the decision is arbitrary, capricious, or unreasonable.
An administrative agency has a reasonable range of discretion to apply its own regulations, and the agency's expertise is entitled to deference when the subject matter is complex.
A North Dakota Pollutant Discharge Elimination System permit may be modified for cause, which includes new information or to correct a technical mistake.
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. Kochel
, 2008 ND 28,
744 N.W.2d 771
Whether an individual has a reasonable expectation of privacy is reviewed de novo.
Van Sickle v. Hallmark & Assoc., Inc.
, 2008 ND 12,
744 N.W.2d 532
A debt cannot be discharged in bankruptcy unless the creditor received notice of the bankruptcy proceedings.
State and federal courts have concurrent jurisdiction to decide whether a creditor's claim has been discharged in a bankruptcy proceeding if the creditor claims he did not have notice or actual knowledge of the bankruptcy proceeding.
Claims for conversion and breach of contract may arise under the same facts if the defendant's conduct would give rise to liability independent of the fact that a contract exists between the parties.
A claim for tortious interference ordinarily requires a showing that a person who is not a party to the contract interfered with the contract.
The Supreme Court does not issue advisory opinions.
Interest of J.S.
, 2008 ND 9,
743 N.W.2d 808
Brewer v. Ziegler
, 2007 ND 207,
743 N.W.2d 391
A highway patrol officer has the express power to enforce the state motor vehicle laws and to enforce all laws relating to the use or presence of alcoholic beverages in motor vehicles, and, therefore, has the power to arrest a person who is located
on private property while violating the provisions of those laws.
The failure to give an implied consent advisory does not require exclusion of the preliminary breath test results.
Horizontal gaze nystagmus test results may be used as circumstantial evidence of intoxication without requiring scientific foundation by expert testimony.
Bartch v. ND Dept. of Transportation
, 2007 ND 201,
743 N.W.2d 109
Display of an expired registration tab on a license plate justifies a traffic stop.
Matter of Midgett
, 2007 ND 198,
742 N.W.2d 803
The Sixth Amendment does not apply to a civil commitment proceeding for a sexually dangerous individual.
In a civil commitment proceeding for a sexually dangerous individual, evidence of prior sexually predatory conduct or criminal conduct, including a record of the juvenile court, is admissible.
Christofferson v. N.D. Dept. of Health
, 2007 ND 199,
742 N.W.2d 799
A tire collection that may benefit agricultural activities may not be a "beneficial use" because of "accumulations in total, on human and animal health, the environment, and on local and state government, which may be ultimately financially
responsible to dispose of the tires."
State v. Skarsgard
, 2007 ND 160,
739 N.W.2d 786
A law enforcement officer may make an investigative stop of a vehicle if the officer has at least a reasonable suspicion that the motorist has violated the law or probable cause to believe the motorist has done so.
When a law enforcement officer observes a vehicle with no license plates and no viewable registration certificate, the officer has reasonable grounds to stop the driver and check if the driver has a valid certificate in his possession.
An adequate foundation for admission of blood-alcohol test results may be established by the testimony of witnesses.
A jury is generally presumed to follow instructions, and a curative instruction to disregard certain evidence is generally sufficient to remove improper prejudice.
Generally, pretrial bail issues are moot after conviction.
Reversal of a conviction and release from confinement is not a remedy for allegations of deliberate indifference to serious medical needs in violation of the cruel and unusual punishment clause of the Eighth Amendment.
Appellate review of a criminal sentence focuses only on whether the district court acted within the limits prescribed by statute, or substantially relied on an impermissible factor.
State v. Hemmes
, 2007 ND 161,
740 N.W.2d 81
Brady v. Maryland, 373 U.S. 83 (1963) does not apply to probation revocation proceedings.
The evidentiary disclosure requirements of N.D.R.Crim.P. 16 apply to probation revocation proceedings.
State v. Newman
, 2007 ND 148,
738 N.W.2d 887
Persons accused of crimes have a constitutional right to a trial by an impartial jury.
An appellate court will not set aside a verdict merely on a whimsy or fanciful notion that prejudicial misconduct occurred.
A defendant on a criminal charge has a constitutional right to be present in the courtroom at every stage of the trial, but the right is not absolute and can be waived by the defendant.
Burns v. Burns
, 2007 ND 134,
737 N.W.2d 243
A continuance is the proper remedy for a party claiming surprise, and a judgment will not ordinarily be reversed on appeal for surprise when no request is made for a continuance at the time and there is no showing of inability to meet the
situation.
If evidence of domestic violence does not rise to the level to trigger the presumption against an award of custody, the court may still consider the evidence as one of the best interest factors.
A district court's concerns about maintaining the custodial relationship that existed prior to the divorce and allowing the child to attend the same school and live in the same house are all valid considerations under N.D.C.C. 14-09-06.2(1)(d).
Being a child's primary caretaker does not guaranty a custody award in a divorce action.
Farmers Union Mut. Ins. Co. v. Assoc. Electric and Gas Ins. Services Ltd.
, 2007 ND 135,
737 N.W.2d 253
Statutory interpretation is a question of law and fully reviewable on appeal.
Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears.
Statutes are construed as a whole and are harmonized to give meaning to related provisions.
If the language of a statute is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit.
Under N.D.C.C. 26.1-41-17, which permits a basic no-fault insurer to seek equitable allocation and intercompany arbitration for no-fault benefits paid, "the motor vehicle liability insurer of a secured person" does not include an excess liability
insurer.
City of Fargo v. Malme
, 2007 ND 137,
737 N.W.2d 390
Cities are creatures of statute and possess only those powers and authorities granted by statute or necessarily implied from an express statutory grant.
Home rule charters allow cities to enact laws contrary to those of the state.
The supersession provision in N.D.C.C. 40-05.1-05 applies only to those powers enumerated in N.D.C.C. 40-05.1-06, and those powers must also be included in the home rule charter and be implemented by ordinance.
The rule of strict construction applies in defining municipal powers, and any doubt as to the existence or extent of municipal powers must be resolved against the municipality.
Steen v. State
, 2007 ND 123,
736 N.W.2d 457
A petitioner for post-conviction relief has the burden of establishing grounds for post-conviction relief.
An application for post-conviction relief may be denied on grounds of res judicata and misuse of process.
Post-conviction relief may be denied as res judicata if the same claim or claims were fully and finally determined in a previous proceeding. Misuse of process occurs when the applicant inexcusably fails either to raise a claim in a proceeding
leading to judgment of conviction and sentence or in a previous post-conviction proceeding, or if the applicant files multiple applications containing a claim so lacking in factual support or legal basis as to be frivolous.
Estate of Elken
, 2007 ND 107,
735 N.W.2d 842
The term "includes" in a statutory definition is a word of enlargement and not a term of limitation.
A reasonably ascertainable creditor entitled to actual notice of the time for making a claim against a decedent's estate is a creditor that a personal representative can uncover with reasonably diligent efforts.
Helfenstein v. Schutt
, 2007 ND 106,
735 N.W.2d 410
Family therapy may not be denied on the basis of the recommendation of experts unless the party seeking family therapy has been given the opportunity to cross-examine the experts.
Dvorak v. Dvorak
, 2007 ND 79,
732 N.W.2d 698
When a post-decision motion is made in a civil case, and a notice of appeal is filed before it is decided, a party who wants the disposition of the motion reviewed on appeal must file either an amended notice of appeal or a separate notice of appeal
from the order deciding the motion.
An obligor whose child support obligation is delinquent cannot disclaim any interest that obligor might have in a trust, and his attempt to assign or otherwise disclaim the interest is voidable. Any attempt to disclaim the interest after notice of
delinquency is furnished to the person administering the trust is absolutely void.
Under agency principles, notice to an attorney, on matters for which the attorney is acting for the client, is notice to the client.
State v. Tutt
, 2007 ND 77,
732 N.W.2d 382
Standing alone, a statutory minimum sentence is not an "element" of the offense.
The U.S. Supreme Court has rejected the argument that the fact of a prior conviction must be found by a jury.
State v. Falconer
, 2007 ND 89,
732 N.W.2d 703
A defendant is entitled to a self-defense jury instruction if there is evidence to support it.
A defendant does not have standing to challenge a grant of immunity to another person.
An accomplice's testimony must be corroborated by independent evidence that tends to connect the defendant with the crime.
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. Helton
, 2007 ND 61,
730 N.W.2d 610
A conviction rests upon insufficient evidence only when no rational factfinder 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.
To sustain a conviction of delivering alcohol to a minor, the State does not need to show actual physical delivery of alcohol to a minor. The statutory definition of delivery includes constructive and attempted transfers as well.
Gisvold v. Windbreak Inc.
, 2007 ND 54,
730 N.W.2d 597
In considering a motion for a new trial based on insufficiency of the evidence, a district court may not substitute its own judgment for that of the jury, or act as a thirteenth juror when the evidence is such that different persons would naturally
and fairly come to different conclusions; rather, a district court may set aside a jury verdict when, in considering all the evidence, the court's judgment tells it the verdict is wrong because it is manifestly against the weight of the evidence.
A district court's decision on a motion for a new trial must concisely state the grounds on which the ruling is based.
Lorenz v. Lorenz
, 2007 ND 49,
729 N.W.2d 692
In determining the value of the parties' marital estate, a district court must include all the parties' assets and debts in the marital estate.
A substantial disparity in the property distribution must be explained.
A district court's findings of fact must be sufficient to allow a reviewing court to understand the basis for the district court's decision.
The decision whether to award spousal support is a finding of fact and will not be reversed on appeal unless it is clearly erroneous.
State v. Brossart
, 2007 ND 39,
729 N.W.2d 137
A conviction rests upon insufficient evidence only when no rational factfinder 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
The proper remedy for addressing claims of unlawful police conduct is allowing the defendant to raise the issue to the factfinder and offer his resistance as a justification defense to the preventing-arrest charge.
Estate of Carlson
, 2007 ND 35,
728 N.W.2d 337
A North Dakota court has no subject matter jurisdiction to grant or deny a motion to substitute a party in an action or proceeding in another state.
Under the Uniform Probate Code, no presentation of claim is required in regard to matters claimed in proceedings against a decedent that were pending at the time of death.
Under the Uniform Probate Code, a judgment in a proceeding in another court against a personal representative to enforce a claim against a decedent's estate is an allowance of the claim in a North Dakota probate proceeding.
Wagner v. Wagner
, 2007 ND 33,
728 N.W.2d 318
A spousal support determination will not be reversed on appeal unless it is clearly erroneous.
Rehabilitative spousal support is awarded to equalize the burdens of divorce or to restore an economically disadvantaged spouse to independent status by providing the spouse with the opportunity to acquire an education, training, work skills, or
experience to become self-supporting.
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.
Hentz v. Elma Township Board
, 2007 ND 19,
727 N.W.2d 276
A township board's decision must be affirmed unless the board acted arbitrarily, capriciously, or unreasonably, or there is not substantial evidence supporting the decision.
Interpretation of an ordinance is fully reviewable on appeal, and failure to correctly interpret and apply the ordinances constitutes arbitrary, capricious, and unreasonable conduct.
Ordinances are interpreted like any statute.
Klimple v. Bahl
, 2007 ND 13,
727 N.W.2d 256
Although there generally is no requirement in ordinary negligence cases for expert testimony to establish the elements of the tort, expert testimony is required if the issue is beyond the area of common knowledge or lay comprehension.
Although hypertechnical words are not necessary for admission of expert medical testimony, the test for admissibility is whether the expert's testimony demonstrates the expert is expressing a medical opinion that is more probable, or more likely than
not.
A doctor's testimony that a certain thing is "possible" is no evidence at all.
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.
Donlin v. Donlin
, 2007 ND 5,
725 N.W.2d 905
Property division need not be equal to be equitable, but a substantial disparity must be explained. A long-term marriage supports an equal distribution of property.
Property division and spousal support are interrelated and intertwined and often must be considered together. In making a spousal support determination, the district court must consider the relevant factors under the Ruff-Fischer guidelines.
Lawrence v. Delkamp
, 2006 ND 257,
725 N.W.2d 211
A person may waive the rights and privileges to which that person is legally entitled, whether secured by contract, conferred by statute, or guaranteed by the constitution.
Waiver occurs when a person voluntarily and intentionally relinquishes a known right or privilege.
Interest of R.S.
, 2006 ND 253,
725 N.W.2d 193
For mental health commitment, the law allows a court to act on warnings and does not require actual violence or expressed threats.
A mentally ill person, convinced that snipers are out to get him, who, armed with a gun, walks directly into a police station without stopping at the front reception desk may pose a serious risk of harm to others.
State v. Oliver
, 2006 ND 241,
724 N.W.2d 114
A faded temporary registration certificate with no visible printing is indicative of a temporary certificate that is more than thirty days old and provides an objective fact giving an officer a right to stop a vehicle to check its validity.
Ibach v. Zacher
, 2006 ND 244,
724 N.W.2d 165
For child visitation, a district court's finding of no material change in circumstances may be reversed as a matter of law on appeal when the custodial parent and child have moved a significant distance and the non-custodial parent has developed a
medical condition requiring treatment that conflicts with the existing visitation schedule.
State v. Johnson
, 2006 ND 248,
724 N.W.2d 129
A police officer's belief that many people violate the thirty-day temporary registration law does not give rise to reasonable suspicion that an automobile is not lawfully registered.
Trinity Hospitals v. Mattson
, 2006 ND 231,
723 N.W.2d 684
The Supreme Court's authority to issue a supervisory writ is a discretionary power exercised rarely, cautiously, and only in extraordinary cases to rectify errors and to prevent injustice when no adequate alternative remedy exists.
A contributing employer is immune from suit under the exclusive remedy provisions of workers' compensation law, and Workforce Safety and Insurance's determination that two affiliated corporations are encompassed under the same premium is a salient
factor in determining a contributing employer.
State v. Ebel
, 2006 ND 212,
723 N.W.2d 375
The Court looks at the "totality of the circumstances" on appeal, giving deference to the district court's findings, to determine whether a search warrant was supported by probable cause.
An evidentiary hearing on whether false statements were provided to support the issuance of a search warrant is only required where: (1) a defendant makes a substantial preliminary showing, accompanied by an offer of proof, that false statements were
made in support of a search warrant, either knowingly and intentionally or with reckless disregard for the truth, and (2) the allegedly false statements are necessary to a finding of probable cause.
Strand v. Cass County
, 2006 ND 190,
721 N.W.2d 374
Jury instructions are reviewed to determine whether, as a whole, they fairly and adequately advised the jury of the applicable law.
A local government body may only be held liable for constitutional violations which result from a policy or custom of the government body.
A district court abuses its discretion when it fails to address nonfrivolous issues presented to the court.
Ungar v. ND State University
, 2006 ND 185,
721 N.W.2d 16
Res judicata, or claim preclusion, prevents the relitigation of claims that were raised, or could have been raised, in prior actions between the same parties or their privies resulting final judgment from a court of competent jurisdiction.
Collateral estoppel, or issue preclusion, forecloses relitigation of issues of either fact or law in a second action based on a different claim, which were necessarily litigated, or must have been litigated, and decided in the prior action.
For the district court to have subject-matter jurisdiction over a university professor's claims against the university, the plaintiff must comply with the statutory notice of claim requirements and exhaust the internal administrative remedies.
ACUITY v. Burd & Smith Construction, Inc.
, 2006 ND 187,
721 N.W.2d 33
A commercial general liability insurance policy excludes coverage for damage to the insured's work product and provides coverage for accidental damage to property other than the insured's work product.
State v. Dailey
, 2006 ND 184,
721 N.W.2d 29
After a jury's verdict has been announced, a trial judge may explain to a jury what will occur after the trial has ended.
Hagel v. Hagel
, 2006 ND 181,
721 N.W.2d 1
When a district court provides no indication of the evidentiary and theoretical basis for its decision, the Supreme Court is left to speculate whether factors were properly considered and the law was properly applied, leaving the Court unable to
perform its appellate function.
Hunt v. Banner Health System
, 2006 ND 174,
720 N.W.2d 49
The presence of a clear, conspicuous, and unambiguous disclaimer may act as an "escape hatch" in an employee handbook, virtually undoing other implied promises made in the handbook.
The language in an employee manual simply stating it does not guarantee employment does not preclude the manual from being an employment contact.
Deacon's Development v. Lamb
, 2006 ND 172,
719 N.W.2d 379
Attorney fees may be recovered if a court finds a party made a frivolous "claim for relief."
A court does not have authority to award attorney fees based on a position a party took prior to litigation.
Dvorak v. Dvorak
, 2006 ND 171,
719 N.W.2d 362
A custodial parent seeking to change the residence of a child to another state has the burden to prove by a preponderance of evidence that the move is in the child's best interest.
A district court's explanation for a disparity in a property distribution must be sufficient to understand the rationale of its determination.
In deciding whether to award attorney's fees for an appeal in a divorce proceeding, a district court must balance the parties' needs and ability to pay.
State v. Bjerklie
, 2006 ND 173,
719 N.W.2d 359
A court's ruling on a motion in limine is reviewed for abuse of discretion.
A court abuses its discretion in granting a motion in limine when it acts in an arbitrary, unreasonable or unconscionable manner.
Lautt v. Lautt
, 2006 ND 161,
718 N.W.2d 563
The standard of review for child support determinations depends on the issue appealed: a de novo standard applies to questions of law; a clearly erroneous standard applies to questions of fact; and an abuse of discretion standard applies to
discretionary matters.
A district court errs by failing to close the record following the hearing and to address a child support modification motion.
Riemers v. State
, 2006 ND 162,
718 N.W.2d 566
Absent personal jurisdiction, a court is powerless to do anything beyond dismissing a case without prejudice.
Rekkedal v. Feist
, 2006 ND 147,
718 N.W.2d 10
Dismissal of a lawsuit for failure to timely file the complaint requires that the demand to file has been served under N.D.R.Civ.P. 4(d); N.D.R.Civ.P. 5 service of the demand is not sufficient.
A party will be sanctioned for including in its appendix material not in the district court record.
Farmers Insurance Exchange v. Schirado
, 2006 ND 141,
717 N.W.2d 576
A plaintiff may establish the elements of a claim by circumstantial evidence.
Direct evidence of causation is not required if other evidence is sufficient to permit an inference that the defendant's conduct caused the plaintiff's damages.
State v. Pace
, 2006 ND 98,
713 N.W.2d 535
A driving-under-the-influence arrestee being asked to submit to a chemical test is, upon request, entitled to a reasonable opportunity to contact a lawyer before deciding whether to take the test.
The reasonableness of the opportunity to consult with a lawyer before taking a chemical test for DUI is evaluated under the totality of the circumstances.
A law enforcement officer need not offer other suggestions to a DUI arrestee who is unable to reach his lawyer and makes no further requests.
Sanderson v. Walsh Co.
, 2006 ND 83,
712 N.W.2d 842
A dismissal without prejudice is not appealable except where the dismissal has the practical effect of terminating the litigation in the plaintiff's forum, e.g., a statute of limitations has run or where litigation is foreclosed in the state
court.
Mailing, even by certified mail with return receipt and restricted delivery, does not constitute "delivering" for purposes of service of process on a county or the State under N.D.R.Civ.P. 4(d)(2)(E) and 4(d)(2)(F).
State v. Genre
, 2006 ND 77,
712 N.W.2d 624
Voluntary consent to search is an exception to the warrant requirement.
An officer is generally not required to administer the Miranda warning during a traffic stop because the person is not in custody.
Statements made to law enforcement in an effort to cooperate with the hope of receiving some benefit are not statements made during a plea discussion and are admissible.
Interest of P.F.
, 2006 ND 82,
712 N.W.2d 610
A preliminary hearing must be held within seventy-two hours of the filing of a petition for commitment of a sexually dangerous individual. The purpose of the hearing is to determine whether there is probable cause to believe that individual is
sexually dangerous.
Expert testimony is not required at the preliminary hearing.
A commitment hearing must be held within sixty days of the finding of probable cause, but the district court may grant an extension if good cause is shown.
Scheduling constraints alone do not automatically establish "good cause" for extending time before the hearing.
In determining whether a person is "sexually dangerous," the State's experts may rely on all sexual predatory conduct, not just that conduct that resulted in a successful conviction on a sexual offense.
Gustafson v. ND Department of Human Services
, 2006 ND 75,
712 N.W.2d 599
Under the 2003 version of the statute, for Medicaid eligibility, the purchase of an annuity is considered an uncompensated assignment or transfer of assets if it is not expected to return the full principal and interest within the purchaser's life
expectancy.
Once a Medicaid applicant supplies a physician's estimate of reasonable life expectancy, the burden shifts to the Department of Human Services to accept or determine a reasonable life expectancy.
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.
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.
Thomas v. Stone
, 2006 ND 59,
711 N.W.2d 199
An insured's authority to designate beneficiaries in a life insurance policy may be limited by an agreement or judgment.
State v. Stewart
, 2006 ND 39,
710 N.W.2d 403
The Court looks at the "totality of the circumstances" on appeal, giving deference to the district court's findings, to determine whether a search warrant was supported by probable cause.
A search warrant must describe with particularity the places to be searched and items to be seized to avoid "exploratory rummaging" in its execution.
The State must provide actual notice of its intention to admit prior bad acts testimony.
State v. Anderson
, 2006 ND 44,
710 N.W.2d 392
Information from an informant may provide the factual basis to establish reasonable suspicion for an investigatory stop.
Circumstances of a case must be evaluated in determining whether actions taken by law enforcement officers during an investigatory stop are reasonable and do not amount to a defacto arrest.
The public safety exception to Miranda allows admission of statements a suspect makes in answering questions about whether the suspect has a weapon.
Law enforcement officers may conduct a warrantless search of a vehicle for weapons or additional occupants under the public safety exception to the warrant requirement.
MBNA v. Hart
, 2006 ND 33,
710 N.W.2d 125
A court must confirm an arbitration award upon application of any party to the award unless a party has filed a motion with the court to vacate, modify, or correct the award within 90 days after delivery of a copy of the award, or within 90 days
after grounds are known or should have been known to the injured party if the motion to vacate is based on corruption, fraud, or other undue means.
Davis v. Killu
, 2006 ND 32,
710 N.W.2d 118
An expert's testimony may not be used merely as a conduit to place otherwise inadmissible evidence before a jury.
Parties are required to create a record that will permit informed appellate review.
Nonprejudical mistakes by the trial court constitute harmless error and are not grounds for reversal.
A failure to object acts as a waiver of the claim of error.
State v. Bertram
, 2006 ND 10,
708 N.W.2d 913
Generally, legal advice is not a defense to a criminal prosecution, but may be used to negate the requisite state of mind in some circumstances.
The "same elements" test applies to double jeopardy claims under both the state and the federal constitutions and requires consideration of whether each offense contains an element not contained in the other offense.
Proof of a defendant's knowledge of a disorderly conduct restraining order satisfies the culpability requirement for violation of a disorderly conduct restraining order.
A criminal information must contain a written statement of the essential elements of the offense, which includes the nonexistence of a defense as to which there is evidence sufficient to give rise to a reasonable doubt on an issue.
Edward H. Schwartz Const. Inc. v. Driessen
, 2006 ND 15,
709 N.W.2d 733
The existence of an oral contract and the extent of its terms are questions of fact that are reviewed under the clearly erroneous standard of review.
A trial court's choice between two permissible views of the weight of the evidence is not clearly erroneous, and simply because an appellate court may have viewed the evidence differently does not entitle it to reverse the trial court.
State v. Nikle
, 2006 ND 25,
708 N.W.2d 867
Great weight is given to a potential juror's claim that he or she will maintain impartiality.
No legal rule is violated if a jury panel is not rejected after one venireperson makes a comment which, though arguably inappropriate, does not affect the fairness or impartiality of any member of the venire.
Assistance of counsel is effective if, despite counsel's "errors," the results of the proceedings would remain unchanged.
State v. Schrum
, 2006 ND 18,
709 N.W.2d 348
A criminal defendant's sentence must be credited for time served in custody on that charge.
Dunn v. State
, 2006 ND 26,
709 N.W.2d 1
A motion for summary dismissal under the Uniform Post-Conviction Relief Act is akin to a motion for summary judgment.
Thirty days' response time is allowed following motions for summary dismissal under the Uniform Post-Conviction Relief Act.
Summary dismissal is appropriate if the petitioner in a post-conviction relief action fails to raise a genuine issue of material fact.
State v. Raulston
, 2005 ND 212,
707 N.W.2d 464
A sentence is not illegal if, during the judge's oral pronouncement of the sentence, he states a hypothetical that could not come to fruition.
A defendant need not be informed of an 85 percent service requirement for a guilty plea to be knowingly, intelligently, and voluntarily entered, as such a requirement is a parole condition rather than a mandatory minimum sentence.
An ineffective assistance of counsel claim fails when an attorney's performance--deficient or not--does not prejudice a defendant, due to the overwhelming evidence favoring the defendant's guilt.
The State may respond to an application for post-conviction relief within the time allowed by the court.
The district court's failure to make explicit findings and conclusions in its denial of post-conviction relief is harmless error based on the ample evidence within the record.
Laib v. State
, 2005 ND 187,
705 N.W.2d 845
A defendant who has inexcusably failed to raise an issue on a prior direct appeal may not raise the issue in a subsequent application for post-conviction relief.
A defendant claiming ineffective assistance of counsel must prove that counsel's representation fell below an objective standard of reasonableness and that the defendant was thereby prejudiced.
To demonstrate prejudice from ineffective representation, the defendant must establish a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
L.C.V. v. D.E.G.
, 2005 ND 180,
705 N.W.2d 257
The trial court cannot delegate to a custody investigator its authority to award custody to the parent who will promote the best interest and welfare of the child, and it is within the trial court's discretion to assign the weight given to a custody
investigator's recommendations.
The trial court's choice for custody between two fit parents is a difficult one, and the appellate court will not retry the case or substitute its judgment for that of the trial court when the decision is supported by the evidence.
Attorney fees are not allowed to a successful litigant in a custody and support proceeding unless expressly authorized by statute or agreement.
Clark v. Clark
, 2005 ND 176,
704 N.W.2d 847
When the district court provides no factual findings or explanation for the basis of its custody decision, remand is necessary.
A district court must make factual findings regarding spousal support.
An award of grandparent visitation or custody is clearly erroneous if exceptional circumstances do not exist, the best interests of the child were not examined, and the grandparent did not petition the court for visitation or custody.
A successor judge taking over a case must either make a N.D.R.Civ.P. 63 certification before resuming proceedings or order a new trial.
State v. Frankfurth
, 2005 ND 167,
704 N.W.2d 564
A criminal information must contain all essential elements of the offense in order to charge that offense.
A motion to arrest the judgment may be made after trial when the information fails to charge a crime.
A defective information failing to charge a crime cannot be "cured" through proper jury instruction or other means short of amendment.