State v. Halvorson, 340 N.W.2d 176 (N.D. 1983)
Under N.D.C.C. 32-21-03, the decedent's grandmother
was not entitled to bring a wrongful death claim as
a 'surviving mother or father,' or in her capacity as
personal representative of the decedent's estate.
Under N.D.R.Civ.P. 17(a), the trial court should have
granted the decedent's grandmother a reasonable time
for the substitution of the decedent's parents as
plaintiffs, or for the parents' ratification of the
wrongful death claim.
The trial court did not commit obvious error when it failed to
instruct the jury that it could consider the defendant's
intoxication to negate the culpability requirement of the
charge of willfully delivering a controlled substance. There
was no relevant evidence upon which a jury could find the
defendant was so intoxicated as to negate her culpability.
The trial court's instructions on voluntary intoxication and
entrapment adequately apprised the jury of the law and neither
misled nor misinformed the jury.
An undercover agent's statements that the suspect could use
some of the drugs after she delivered them did not constitute
entrapment as a matter of law.
Because the appellants argued they were entitled to an
additional lease benefit, their acceptance of a $6,000 cash award
did not waive their right to appeal. A lease cannot be voided
upon the lessee's mistake of fact arising from the lessee's
neglect to determine the true state of title to the property.
A joint tenant has the right to lease her interest in the
property without the consent of the other joint tenant. The
lessee succeeds to all the rights of the lessor to enjoy
possession of the property with the other joint tenant.
The stimulation of commercial growth and removal of
economic stagnation sought by the Urban Renewal Law, Chapter
40-58, N.D.C.C., are objectives satisfying the public use and
purpose requirement of N.D. Const. Art I, 16 and U.S. Const.
Amend. V. The city did not abuse its discretion in finding
the taking of private property in downtown Jamestown for
development of a retail food store was necessary in the
interests of the public economy, health and welfare of its
residents. The Supreme Court reversed and remanded for the
trial court to determine whether the primary object of the
proposed development was for the economic welfare of downtown
Jamestown, in which the taking would be constitutional, or for
the benefit of the private developer, in which the taking
would be unconstitutional. A trial court has no statutory
authority in an eminent domain proceeding to assess the costs
and fees of the city's expert appraiser against the landowner
whose property was taken.
North Dakota Administrative Code 75-02-04.1-07 authorizes
imputing income to an underemployed child support obligor,
based on the obligor's earning capacity. The child support
guidelines present an objective standard - 'prevailing amounts
earned in the community by persons with similar work history
and occupational qualifications' - to measure the obligor's
'gross income from earnings.'
Where the father lived apart from his family, except
for weekends and holidays, the trial court's child custody award
to the mother was not clearly erroneous. An employer's
contributions to a child support obligor's pension plan and
health insurance must be included in the obligor's income for
determining child support. Interest on a judgment may not be
compounded.
Where no meaningful relief could be provided by answering the
question raised by the appellant, the issue was not ripe for
adjudication and the appeal was dismissed.
Although the defendant did not directly communicate
threats to the victim, there was sufficient circumstantial
evidence to support a guilty verdict for terrorizing, because
the jury could have reasonably decided the defendant
recklessly disregarded the risk his threats would be
communicated to the victim
The trial court did not err in concluding that a
shareholder's conduct was oppressive, fraudulent, and unfairly
prejudicial and, therefore, did not abuse its discretion in
appointing a receiver to preserve the assets of the corporation
during the shareholder's divorce.
Minor traffic violations provide a law enforcement
officer with a reasonable and articulable suspicion
sufficient to justify an investigatory stop of a vehicle.
An administrative hearing officer's determination of
whether an officer has reasonable suspicion to stop a vehicle
does not preclude relitigation of the issue in a related
criminal proceeding. Although a motorist who has
submitted to a properly administered chemical test yielding a
readable result may refuse to submit to a second test, a
motorist may not refuse a second test if the first test was
defective and was aborted before breath samples were
provided.
It is an affirmative defense to a prosecution for possession
of illegal fishtraps under Section 20.1-06-04, N.D.C.C., that
the accused unwittingly or unknowingly possessed the
fishtraps.
There was substantial evidence to support the trial court's
finding that the defendants illegally possessed fishtraps.
A police officer had a reasonable and articulable
suspicion for an investigative stop where the officer
approached the defendant's stopped vehicle and, while
conversing with the defendant, smelled alcohol on his breath
and obtained a statement that the defendant had been drinking.
One who hires an independent contractor is liable
for the negligence of the contractor under the 'retained control'
theory of Section 414, Restatement (Second) of Torts, only if he
retains control over the manner, method, or operative detail of
the work. Merely providing an isolated piece of equipment,
without directly supervising or controlling its use, does not
constitute control sufficient to create a duty under the
retained control doctrine.
In quiet-title actions, for trial of the issue of waiver, the
issue must be specifically pled, pursuant to Rule 8(c),
N.D.R.Civ.P.
Law enforcement officers did not conduct a
warrantless search by entering defendant's property via his
driveway and observing defendant's pickup from outside his
open garage. However, the officers' entry into defendant's
open garage without a warrant constituted an unlawful
search. A later-obtained search warrant was supported by
probable cause derived from sources independent of the
officers' unlawful entry into the defendant's garage.
However, remand was necessary for a determination whether the
officers' decision to seek the warrant was caused by what
they saw during the unlawful entry. Statements
voluntarily made by the defendant prior to his arrest were
not required to be suppressed. The trial court did not
abuse its discretion by denying a motion to exclude the
results of an Intoxilyzer test in the prosecution for
negligent homicide.
The trial court did not abuse its discretion by denying
the motion of the defendant, an attorney, to excuse for cause
a juror who was a former client of another attorney in the
defendant's law firm. Although the trial court abused its
discretion by admitting evidence of a prior accident because
the State did not give 'reasonable notice in advance of
trial' as required by Rule 404(b), N.D.R.Ev., the error was
harmless.
The ten-year statute of limitations in Section
28-01-15(2), N.D.C.C., applies to an action for reformation of a
ground lease on the basis of mutual mistake. A reformation
action based upon mutual mistake accrues when the facts which
constitute the mistake have been, or in the exercise of
reasonable diligence should have been, discovered by the parties
seeking relief. Under Section 32-04-17, N.D.C.C., reformation
of a contract is not available against third persons who have
acquired rights in good faith and for value. If parties
make a mistake in reducing a prior agreement to writing, the
negligent failure to read the subsequent written agreement does
not preclude reformation of the agreement unless failure to read
the agreement was not in good faith or was not in accordance
with reasonable standards of fair dealing.
Absent compelling circumstances, the trial court cannot order
that a portion of the presumptively correct amount of support
under the child support guidelines be paid into an
annuity for the child's future benefit. The guidelines assume
the presumptive amount will be paid to the custodial parent to
use for the child's current expenses.
In calculating an obligor's net income, the guidelines allow a
deduction for taxes based upon standard deductions and tax
tables, not actual taxes paid or amounts shown on a W-2 form.
Where proceedings to increase child support were delayed for
more than a year by the obligor
provide financial information, the trial court abused its
discretion in making the modification effective after issuance
of its order, rather than at the time the motion to increase
support was originally filed.
The subject judgment was not an impermissible attack on
The hearing and review procedure for a finding of probable cause
of child abuse under Chapter 50-25.1, N.D.C.C., is a 'contested
case' under Section 28-32-01(4), N.D.C.C., and the Department of
Human Services bears the burden of proof. To support a finding
of probable cause of child abuse under Chapter 50.25.1, N.D.C.C.,
there must be evidence of serious physical harm or traumatic
abuse, evidenced by negative changes in the child's health
resulting from infliction of physical or mental injury. The
court erred in awarding attorney's fees for the proceedings at
the administrative level, because attorney's fees under Section
28-32-21.1(1), N.D.C.C., are authorized only for those
proceedings necessitated by the Department's unjustified actions.
The Department cannot limit a hearing on terminating food stamps
to a mere review of a staff decision, but must allow a full
evidentiary hearing for the applicant to present arguments and
evidence why food stamps should not be discontinued.
The Department of Human Services denied a food stamp applicant
a fair hearing when it refused to consider evidence, offered
for the first time at the hearing, the applicant had a medical
disability exempting him from attending a required employment
orientation.
An appeal from a decision of the Workers Compensation Bureau
must be taken to the district court of the county where the
injury occurred or the claimant resides.
cause of child abuse under Chapter 50-25.1, N.D.C.C., is a
'contested case' under Section 28-32-01(4), N.D.C.C., and the
Department of Human Services bears the burden of proof.
To support a finding of probable cause of child abuse under
Chapter 50-25.1, N.D.C.C., there must be evidence of serious
physical harm or traumatic abuse, evidenced by negative changes
in the child's health resulting from infliction of physical or
mental injury.
The court erred in awarding attorney's fees for the
proceedings at the administrative level, because attorney's
fees under Section 28-32-21.1(1), N.D.C.C., are authorized
only for those
proceedings necessitated by the Department's unjustified
actions.
Chapter 28-32, N.D.C.C., authorizes an appeal to the district
court from a Department of Human Services' finding of probable
cause of child abuse or neglect.
The Department's determination there was probable cause of
abuse by parents who used corporal punishment as a last resort
to discipline their children was not supported by a
preponderance of evidence. There was no evidence from which a
reasonable person could conclude any of the children suffered
serious physical harm or traumatic abuse as a result of
the parental spankings.
The trial court did not abuse its discretion in admitting the
testimony of the plaintiff's state-of-the-art expert witness in
an asbestos-related personal injury action.
The trial court is in a superior position to gauge the potential
prejudice of an attorney's misconduct and its probable effect on
the jury.
When a litigant fails to draw the court's attention to relevant
parts of the record, judges are not obligated to search the
record for evidence to support the litigant's position.
Under the Uniform Commercial Code, proceeds of a settlement
agreement in an impending lawsuit are general intangibles.
Under the unambiguous terms of a work-out agreement, a
creditor was entitled to the settlement proceeds from the
debtor
There was sufficient evidence to support the jury's verdict
finding the defendant guilty of stalking.
A deck extending to the side lot boundary of the
owner's property did not violate a city zoning ordinance, and
the city was not entitled to an injunction requiring the owner
to remove or modify the deck. A city's erroneous
interpretation of an unambiguous ordinance is not entitled to
deference.
Retrospective premium adjustments made annually
by an insurer under the terms of a workers compensation
insurance policy did not create a 'mutual open, and current
account' between the insurer and insured within the meaning of
Section 28-01-37, N.D.C.C., for purposes of determining when an
action accrues to start the running of the statute of
limitations.
The police officer had a reasonable and articulable suspicion
the defendant was in actual physical control of a vehicle in
violation of a city ordinance.
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.
The claimant did not have standing to challenge the
Workers Compensation Bureau's claimed lack of a peer review
system. Under Section 65-05-07(3), N.D.C.C., only doctors or
health care providers may appeal adverse Bureau decisions on
'reasonableness of fees and payment denials for unjustified
treatments.'
When the seller of a business agrees not to
engage in that business in the area for a reasonable length of
time, good will although not specifically mentioned passes as an
incident of the sale. If each party prevails on certain
parts of a lawsuit, the trial court need not award costs
under Section 28-26-06, N.D.C.C., to either party.
Under Section 57-38-01.3(1)(c), N.D.C.C., a subsidiary
corporation's state income tax deduction for federal income taxes
'paid or accrued' is the subsidiary's proportionate share of the
federal tax actually paid to the federal government by the
subsidiary's parent corporation.
A will contestant must prove testamentary incapacity by a
preponderance of the evidence rather than by clear and
convincing evidence.
The trial court
capacity when she signed a codicil
to her will was not clearly erroneous.
The district court did not abuse its discretion by
summarily imposing a punitive contempt sanction in response to
contemptuous remarks made by defendant to the jury.
The juvenile court did not err when it applied the child
support guidelines to determine a parent's financial ability
to pay support for her child in foster care under Section
27-20-49, N.D.C.C.