William A. Neumann, Justice

Simpson v. Chicago Pneumatic Tool Co. , 2005 ND 55, 693 N.W.2d 612
For purposes of res judicata and collateral estoppel, parties and their privies are barred by a former judgment.
Res judicata and collateral estoppel apply when subsequent claims are based on the same facts and events but different legal theories are pled.
A district court's determination regarding a request for sanctions under N.D.R.Civ.P. 11 will not be reversed unless the court abused its discretion.
Monetary sanctions may not be awarded against a represented party for a violation of N.D.R.Civ.P. 11(b)(2).
Frieze v. Frieze , 2005 ND 53, 692 N.W.2d 912
Section 14-09-06.6(5), N.D.C.C., limits the grounds upon which a court may grant a motion to change custody which is brought within two years following entry of the order establishing custody, and includes the persistent and willful denial of interference with visitation or a present environment which may endanger or impair the child's physical or emotional health or development.
When a stepparent's career takes him or her out of state to secure a job, allowing the spouse and stepchildren to relocate to that place is crucially important to maintaining family continuity and stability.
When the relevant factors weigh in favor of the custodial parent's request to relocate the children, the trial court's denial of the motion constitutes reversible error.
Gamboa v. State , 2005 ND 48, 693 N.W.2d 21
In post-conviction relief proceedings, it is not an abuse of discretion to deny default judgment when a petitioner cannot show he suffered any prejudice from the State's untimely response.
Post-conviction relief applications seeking withdrawal of a guilty plea must be made in a timely manner in accordance with Rule 32, N.D.R.Crim.P.
Larsen v. ND Dept. of Transportation , 2005 ND 51, 693 N.W.2d 39
In interpreting a statute, a court may not disregard the letter of the statute under the pretext of pursuing its spirit, and may not add words to the statute.
Roberts v. ND Department of Human Services , 2005 ND 50, 692 N.W.2d 922
An applicant for medicaid benefits has the burden of establishing eligibility for benefits and providing information necessary to establish eligibility.
Transactions between a trustee and a beneficiary by which the trustee obtains any advantage from the beneficiary are presumed to be entered into without sufficient consideration.
Thomas v. Workforce Safety and Insurance , 2005 ND 52, 692 N.W.2d 901
A willful failure to give a maximum consistent effort in a functional capacity assessment can constitute noncompliance with vocational rehabilitation.
Workforce Safety and Insurance must adequately explain the reasons for disregarding medical evidence favorable to a claimant.
Vogel v. Workforce Safety and Insurance , 2005 ND 43, 693 N.W.2d 8
In appeals from administrative agency decisions, challenged findings of fact are affirmed when supported by a preponderance of the evidence.
Questions of law are fully reviewable on appeal from an administrative decision.
A reviewing court defers to a hearing officer's unique opportunity to judge the credibility of witnesses.
State v. Buchholz , 2005 ND 30, 692 N.W.2d 105
Statutory construction is a question of law, fully reviewable on appeal. Statutes are not interpreted in a manner that would render part of the statute mere surplusage.
Mistake of law is an affirmative defense that must be proved by a preponderance of the evidence at trial. It cannot be used to overcome a charged offense at a preliminary hearing.
Beckler v. Workforce Safety and Insurance , 2005 ND 33, 692 N.W.2d 483
A claimant seeking reinstatement of discontinued disability benefits must show a significant change in his compensable medical condition and an actual wage loss caused by the change in medical condition.
To prove actual wage loss, a claimant must show that he was earning wages from employment when the change in his medical condition occurred.
An appeal of an administrative agency decision invokes the appellate jurisdiction of the district court, and the court's review must be based only on the administrative record filed with the court.
State v. Fields , 2005 ND 15, 691 N.W.2d 233
Actual drug evidence, rather than indicia of drugs, obtained from a garbage search, is enough to support probable cause for a search warrant.
Nighttime search warrants cannot be issued on a per se basis in drug cases. Facts supporting probable cause to justify the necessity of the nighttime execution must be set forth.
State v. Thill , 2005 ND 13, 691 N.W.2d 230
When the State fails to preserve evidence that is neither clearly exculpatory or inculpatory, a defendant must prove the State acted in bad faith to constitute a denial of due process.
Jurors are presumed to follow the trial court's jury instructions.
State v. Nelson , 2005 ND 11, 691 N.W.2d 218
The emergency exception to the warrant requirement may apply even when officers are already legitimately inside a residence when an emergency occurs.
Consent to search must be proven by affirmative conduct. Merely taking no action to stop officers from searching is not enough to prove conduct consistent with giving consent.
For probable cause to issue a search warrant, the magistrate must be provided with a factual basis for the affiant's assumptions. Mere speculation and conclusory statements are not enough.
During the execution of a search warrant, the presence of a third party not actually participating in the search does not necessitate suppression of the evidence discovered.
Christoffersen v. Giese , 2005 ND 17, 691 N.W.2d 195
When computing child support obligations, N.D. Admin. Code sec. 75-02-04.1-07(9) requires income be imputed from an obligor's actual income in a twelve-month consecutive period, not an extrapolated amount from less than twelve months.
The party who moves for amendment of a child support order has the burden of proving the existing amount is not in conformity with the amount required by the guidelines. Failure to meet this burden can result in denial of the motion.
State v. Jackson , 2005 ND 14, 691 N.W.2d 250
The distance an officer follows a vehicle does not abrogate a legally legitimate basis for a traffic stop.
State v. Jaster , 2004 ND 223, 690 N.W.2d 213
A current attorney-client relationship with the prosecutor is one of the exclusive causes of an implied bias that warrants dismissal of a juror.
A defendant must exhaust all peremptory challenges before objecting to the denial of a challenge for cause.
A party's right to exercise peremptory challenges is not violated if the party uses a peremptory challenge to exclude a juror the district court refused to excuse for cause, and no biased juror sits.
A statement is inadmissible hearsay only if it is offered to prove the truth of the matter asserted.
The pattern jury instruction on reckless endangerment erroneously omits the term "particular" from the definition of the crime.
State v. Hayek , 2004 ND 211, 689 N.W.2d 422
An ineffective assistance of counsel claim is more properly pursued in a post-conviction relief proceeding. Without a properly developed record, it is difficult to determine whether an attorney's conduct is part of a legitimate trial strategy or if the representation fell below the acceptable standard of reasonableness.
Failure to object at the time of an alleged error waives the claimed error and does not preserve the issue for appeal.
Knoll v. Kuleck , 2004 ND 199, 688 N.W.2d 370
The child support guidelines require a child support order to include a statement of the net income of the obligor used to determine the child support obligation, and how that net income was determined.
The child support guidelines require documentation of a child support obligor's income.
Rott v. Connecticut General Life Ins. Co. , 2004 ND 198, 688 N.W.2d 378
A quitclaim deed transfers the grantor's interest, if any, in the property to the grantee.
If no action is taken to substitute the appropriate entity as a party to an appeal, the appeal may be dismissed.
Long v. Jaszczak , 2004 ND 194, 688 N.W.2d 173
For purposes of the statute of limitations, an action commences when the summons, with the intent it shall be served, is delivered to the sheriff or officer of the county where the defendant resides.
A primary physician, ordering a diagnostic procedure to further a patient's care, has a legal duty to obtain the patient's informed consent.
Generally, in cases of informed consent, materiality of risk and causation are questions for the trier of fact.
Expert testimony is not required to prove whether a reasonable patient would attach significance to a particular risk.
A hospital does not owe a legal duty to obtain its patients' informed consent, it is a physician's responsibility.
Baity v. Workforce Safety & Insurance , 2004 ND 184, 687 N.W.2d 714
Supplementary disability benefits may be awarded only after Workforce Safety and Insurance has determined the claimant is incapable of rehabilitation of earnings capacity and is therefore permanently and totally disabled.
An agency's systemic disregard of the law may warrant reversing the agency decision without a showing of prejudice by the party relying on the improper conduct, but evidence of a single improper act is not sufficient to establish systemic disregard.
Hansen v. Scott , 2004 ND 179, 687 N.W.2d 247
When applying principles of comity, it is not against North Dakota public policy to grant a sister state's employees the same level of immunity North Dakota state employees enjoy.
Horner v. Horner , 2004 ND 165, 686 N.W.2d 131
Duration of a marriage is only one factor of the Ruff-Fischer guidelines and is not controlling in a distribution of marital property.
A party's dissipation of marital assets is a particularly relevant factor in arriving at an equitable distribution of the property.
Periodic cash payments awarded without interest need to be discounted to present value in determining whether a property distribution is equitable.
Distributing farm assets to one spouse with an offsetting monetary award to the other spouse is an acceptable method of preserving the viability of a family farm.
Interest of R.H. , 2004 ND 170, 686 N.W.2d 107
A party against whom a presumption is directed has the burden of proving that the nonexistence of the presumed fact is more probable than its existence.
State v. Haibeck , 2004 ND 163, 685 N.W.2d 512
Under the automobile exception to the warrant requirement of the Fourth Amendment to the U.S. Constitution, contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant where probable cause exists.
When conducting a search under the automobile exception, law enforcement does not need separate findings of probable cause to support multiple searches of a vehicle when the searches are virtually contemporaneous.
A Miranda violation does not require suppression of the physical fruits of a suspect's unwarned but voluntary statements.
The fact that an officer may have authority to arrest a suspect does not mean that a suspect is in custody for purposes of Miranda.
Grandbois and Grandbois, Inc. v. City of Watford City , 2004 ND 162, 685 N.W.2d 129
Summary judgment is proper against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case and on which that party will bear the burden of proof at trial.
The plaintiff has the burden of showing actual damage and establishing that the actual damage was proximately caused by the alleged fraudulent or deceitful act.
State v. Hilgers , 2004 ND 160, 685 N.W.2d 109
A trial court is not obligated to issue every subpoena requested by a defendant.
An appellant is required to file a transcript on appeal and assumes the consequences of a failure to do so. An appellate court will decline to review an issue over which it is unable to provide meaningful review.
Grand Forks Co. v. Tollefson , 2004 ND 161, 684 N.W.2d 646
An employee's benefit year, for purposes of calculating a former employer's liability for unemployment benefits, begins when the employee first files a request for determination of insured status, and a subsequent benefit year cannot be established until the expiration of the current benefit year.
In an administrative proceeding, a party's failure to request that a witness be subpoenaed waives the right to have the witness present and available for cross-examination.
Ag Acceptance Corp. v. Glinz , 2004 ND 154, 684 N.W.2d 632
A contract must be interpreted to give effect to the mutual intention of the parties as it existed at the time of contracting, and when the contract has been reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible.
An agricultural operating loan evidenced by a promissory note specifying that all principal and interest shall be due on a date certain shortly after completion of that crop year is not a revolving charge agreement.
To establish an antitrust violation based upon illegal tying, it must be shown that the seller possesses significant market power in the tying market.
Ernst v. State , 2004 ND 152, 683 N.W.2d 891
A guilty plea is a 'critical stage' in the criminal process so the constitutional right to counsel attaches.
A plea may be adjudged involuntary and withdrawn if a defendant received ineffective assistance of counsel for the plea. To prove an ineffective assistance of counsel, a defendant must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.
Failure to file pretrial motions, by itself, does not equate to ineffective assistance of counsel.
Johnson v. ND Dept. of Transportation , 2004 ND 148, 683 N.W.2d 886
An officer who properly arrests a driver for DUI and who obtains, within the officer's jurisdiction, the driver's consent to submit to a blood test can transport the arrestee outside the jurisdiction for the test.
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.
Tibert v. Minto Grain , 2004 ND 133, 682 N.W.2d 294
A trial court's decision granting judgment on the pleadings is reviewed de novo.
The purpose of liberal pleading requirements is to apprise the defendant of the nature of the plaintiff's claim.
Johnson v. State , 2004 ND 130, 681 N.W.2d 769
An application for post-conviction relief is properly dismissed on the pleadings if the court cannot discern a potential for proof to support the application.
A defendant who inexcusably fails to raise all his claims in a single post-conviction proceeding misuses the post-conviction process by initiating a subsequent application raising issues that could have been raised in the earlier proceeding.
The Strickland standard for assessing ineffective assistance of counsel applies to claims of ineffective post-conviction counsel.
A criminal defendant has no constitutional right to "hybrid" representation and to act as co-counsel with his attorney.
Tibbetts v. Dornheim , 2004 ND 129, 681 N.W.2d 798
Generally, interlocutory orders in an action are merged into the final judgment and may be reviewed on appeal of that judgment.
All of the issues between parties are merged in the final judgment.
A party waives an issue by not providing supporting argument, and without supportive reasoning or citations to relevant authorities, an argument is without merit.
Azure v. Belcourt Public School Dist. , 2004 ND 128, 681 N.W.2d 816
In a negligence case, duty is a question of whether a relationship between the parties gives rise to any legal obligation; whether a duty exists is a question of law.
Summary judgment is appropriate when the record indicates the defendant did not owe a duty of care to the plaintiff in a negligence action.
Karsky v. Kirby , 2004 ND 110, 680 N.W.2d 257
When a stipulation is incorporated into a judgment, the court is concerned only with interpretation and enforcement of the judgment, not with the underlying contract.
The right to a hearing from the Banking Board's denial of an application for transfer of the ownership of a banking institution can be waived by the parties.
When a judgment is clarified by the same trial judge who entered it, the clarification is entitled to considerable deference.
Tibert v. City of Minto , 2004 ND 97, 679 N.W.2d 440
A district court's legal conclusion of mootness is reviewed de novo.
A common-law dedication must be proven by clear and convincing evidence. The party attempting to establish the existence of the common-law dedication must show there was an intention to dedicate and a public acceptance of the dedication.
Whether a common-law dedication occurred is a question of fact which will not be disturbed on appeal unless clearly erroneous.
State v. McClary , 2004 ND 98, 679 N.W.2d 455
A jury verdict is inconsistent when, under the jury instructions and evidence, the verdict cannot be rationally reconciled.
A trial court may not question the jury about how it arrived at its verdict.
State v. Parizek , 2004 ND 78, 678 N.W.2d 154
Police officers may freeze a situation and conduct a limited investigative stop of persons present at the scene of a recently committed crime without violating the Fourth Amendment.
A law enforcement officer may conduct a frisk or pat down search of a person only when the officer possesses an articulable suspicion the individual is armed and dangerous.
Certainty that an object is a weapon is not required before an officer may continue a pat down search to the inner clothing site where the object is located.
Generally, where an object recovered from a suspect during a pat down search is a closed container, the officer may not open the container to examine its contents unless the officer can point to specific and articulable facts supporting a reasonable suspicion that the closed container poses a danger to the officer or others nearby.
Evidence obtained by unlawful police conduct is admissible if the prosecution proves by a preponderance of the evidence that the evidence would have inevitably been discovered by lawful means.
State v. Causer , 2004 ND 75, 678 N.W.2d 552
The State is required to provide prior written notice of the alleged probation violations to a probationer.
The trial court is not required to inform a probationer of his statutory right to appeal from a probation revocation. A probationer has no constitutional right to appeal and there is no notification requirement in North Dakota's statutes or rules of procedure.
A probationer does not have a constitutional right to counsel on appeal from a probation revocation because there is no constitutional right to appeal. A trial court has no duty to inform a probationer of his state-granted right to counsel, nor does a trial court have a duty to appoint counsel for a probationer, absent a probationer's request.
A probationer's right against double jeopardy is not violated by a trial court's imposition of additional probation as part of resentencing after probation is revoked.
North Dakota's statutory scheme provides a probationer with actual notice that a probation violation could result in the imposition of a sentence more severe than his originally imposed sentence.
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.
State v. Buchholz , 2004 ND 77, 678 N.W.2d 144
A party's failure to object at trial to references to, and evidence of, other alleged bad acts waives that issue.
A party's failure to submit a proposed jury instruction on consideration of evidence of other bad acts precludes a party from claiming the trial court erred in failing to instruct the jury on that issue.
The statute of limitations in the 1993 version of N.D.C.C. 29-04-03.1 applies to offenses for which the statute of limitations had not expired under prior law.
In the absence of specific language in a sequestration order, N.D.R.Ev. 615 does not apply to witnesses' out-of-court communications during trial.
The failure to raise a violation of the ten-day, pre-sentence report notice at sentencing waives that issue.
Riemers v. O'Halloran , 2004 ND 79, 678 N.W.2d 547
A party waives an issue by not providing supporting argument, and without supportive reasoning or citations to relevant authorities, an argument is without merit.
Court-appointed expert witnesses are absolutely immune from suit on the basis of their testimony.
An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which could be seen as evidence of bad faith.
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.
State v. Lemons , 2004 ND 44, 675 N.W.2d 148
A trial court's refusal to allow a defense witness to testify by telephone is not an abuse of discretion because the Rules of Criminal Procedure provide that all testimony is to be taken orally in open court.
Denial of a motion for continuance to procure an absent witness is not obvious error when a defendant fails to demonstrate the denial affected a substantial right.
Without a showing of prejudice, a trial court's denial of a motion for new trial is not an abuse of discretion.
State v. Utvick , 2004 ND 36, 675 N.W.2d 387
Probable cause is not established for a no-knock search warrant when the magistrate is not presented with any information regarding the suspect's ability to destroy the evidence or the ease with which evidence may be destroyed.
State courts apply the good-faith exception to the exclusionary rule in a manner consistent with United States Supreme Court precedent when evaluating whether evidence should be excluded due to a violation of the Fourth Amendment.
The good-faith exception to the federal exclusionary rule must be considered when a no-knock warrant has been issued in error.
A no-knock search warrant is not issued on a per se basis when the officer presents information sufficiently particularized to rebut any legal conclusion that the warrant was issued on a per se basis, even though the information was not sufficiently particularized to provide probable cause for a no-knock provision.
State v. Ochoa , 2004 ND 43, 675 N.W.2d 161
Without an unequivocal waiver of the constitutional right to counsel or an unequivocal assertion of the constitutional right to self-representation, a trial court is not required to permit self-representation or inquire into the issue of self-representation.
Hybrid representation is not a constitutional right. A defendant's request to proceed in such a manner is not an unequivocal assertion of a defendant's Sixth Amendment right to self-representation.
Chapman v. Chapman , 2004 ND 22, 673 N.W.2d 920
A party is entitled to have a court decide the merits of a dispute only after demonstrating standing to litigate the issues placed before the court.
Only parties may appeal district court decisions.
Issues may not be raised for the first time on appeal.
State v. Roth , 2004 ND 23, 674 N.W.2d 495
Irrelevant information in an affidavit for a search warrant will not negate a magistrate's finding of probable cause, if there is also enough other information in the affidavit to support the finding of probable cause. It is the duty of the magistrate to filter out the non-probative information and examine the remaining information to determine whether probable cause exists for issuance of the search warrant.
There was no violation of defendant's right to be free from unreasonable searches and seizures when, in executing a valid search warrant with an invalid no-knock provision, officers functionally excised the invalid portion of the search warrant by knocking and announcing their presence prior to entering the residence.
Winer v. Penny Enterprises, Inc. , 2004 ND 21, 674 N.W.2d 9
A dismissal without prejudice is appealable if it has the practical effect of terminating the litigation in the plaintiff's chosen forum.
A state district court lacks subject-matter jurisdiction over an action brought by a non-Indian plaintiff against Indian defendants for damages resulting from a motor vehicle accident on a state highway within the exterior boundaries of an Indian reservation.
Tank v. Tank , 2004 ND 15, 673 N.W.2d 622
On appeal, a trial court's denial of an evidentiary hearing on a motion to modify custody is reviewed de novo.
A party seeking a change of child custody is entitled to an evidentiary hearing if the party presents a prima facie case by alleging, with supporting affidavits, sufficient facts which, if proved, would support a change in custody.
Potential endangerment to a child's physical or mental health or a mature child's reasonable preference to live with one parent may be a significant change of circumstances supporting custody change.
A custodial parent's willful and consistent denial or interference with the non-custodial parent's visitation may also be a significant change warranting custody change, if the denial or interference affects the child's best interests.
Eagleman v. State , 2004 ND 6, 673 N.W.2d 241
The movant for summary disposition of a petition for post-conviction relief bears the burden of showing there is no dispute as to either the material facts or the inferences to be drawn from undisputed facts and that the movant is entitled to judgment as a matter of law.
Ordinarily, a claim of ineffective assistance of counsel should be resolved in a post-conviction relief proceeding so the parties can fully develop a record on the issue of counsel's performance and the impact on the defendant's case.
An unconditional guilty plea constitutes an admission of all the essential elements of the crime charged, including admission of jurisdictional facts.
DuPaul v. ND Dept. of Transportation , 2003 ND 201, 672 N.W.2d 680
A motorist may not appeal an administrative decision by the Department of Transportation to the district court and simultaneously petition for reconsideration of the Department's denial. If the motorist files a petition for reconsideration, the motorist may appeal the order on reconsideration to the district court.
State v. Knowels , 2003 ND 180, 671 N.W.2d 816
North Dakota law does not require a chemical test to convict a person of driving while under the influence of alcohol. A conviction may be sustained when evidence of defendant's intoxication is shown through witness testimony of defendant's intoxication, based on their observations of defendant.
Crane Johnson Lumber Co. v. City of Fargo , 2003 ND 181, 671 N.W.2d 814
Property lying outside the limits of a special improvement district created by a municipality's governing body is not subject to assessment by the special assessment commission.
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.
Damron v. Damron , 2003 ND 166, 670 N.W.2d 871
A custodial parent's homosexual household is not grounds for modifying custody within two years of a prior custody order in the absence of evidence the children's environment endangers or potentially endangers the children's physical or emotional health or impairs the children's emotional development.
Ralston v. Ralston , 2003 ND 160, 670 N.W.2d 334
A custodial parent does not need court approval to move a child out of state when the noncustodial parent has moved from the state before or after the divorce decree and lives more than fifty miles from the residence of the custodial parent.
Kjolsrud v. MKB Management Corp. , 2003 ND 144, 669 N.W.2d 82
North Dakota's false advertising law authorizes "any person acting for the interests of itself, its members, or the general public" to bring an action to enjoin violations only if that person satisfies standing requirements.
Guardianship of Shatzka , 2003 ND 147, 669 N.W.2d 95
If a guardian is not appointed, the person for whom guardianship was sought may not be required to pay for a court-appointed visitor, lawyer, physician or temporary guardian.
Lamb v. Riemers , 2003 ND 148, 669 N.W.2d 113
Unless a contract specifically provides otherwise, the seller may retain earnest money only if the buyer breaches the agreement.
Barnes v. Workforce Safety and Insurance , 2003 ND 141, 668 N.W.2d 290
Nothing in the Rules of Evidence or the statutes governing administrative procedure precludes an employee of an agency from testifying as an expert witness in an administrative proceeding before the agency.
McClure v. McClure , 2003 ND 130, 667 N.W.2d 575
In imputing income under N.D. Admin. Code sec. 75-02-04.1-07(3) for determining a child support obligation, the subdivision resulting in the greatest imputed income must be used.
McMorrow v. State , 2003 ND 134, 667 N.W.2d 577
An applicant for post-conviction relief has the burden of establishing grounds for relief.
A defendant alleging selective prosecution must show that the State has not generally prosecuted other similarly situated persons and that the State selected the defendant for prosecution for discriminatory reasons.
A defendant claiming ineffective assistance of counsel has the burden of proving counsel's performance was deficient and the deficient performance prejudiced the defendant.
A party waives an issue by not providing supporting argument, and without supportive reasoning or citations to relevant authorities, an argument is without merit.
Interest of J.S. , 2003 ND 138, 667 N.W.2d 641
A person requiring mental health treatment has the right to the least restrictive conditions necessary to achieve the purposes of the treatment.
John T. Jones Construction Co. v. City of Grand Forks , 2003 ND 109, 665 N.W.2d 698
Parties to an arbitration agreement cannot contractually expand the scope of judicial review of an arbitration award beyond that provided by the Uniform Arbitration Act.
The Uniform Arbitration Act does not authorize Supreme Court review of an arbitration award that has not been subject to review in the district court.
Van Klootwyk v. Baptist Home , 2003 ND 112, 665 N.W.2d 679
The three-month period for providing an admissible expert opinion under N.D.C.C. 28-01-46 applies only when a lawsuit based upon professional negligence is brought against a physician, nurse, or hospital, not a nursing home.
Syversen v. Hess , 2003 ND 118, 665 N.W.2d 23
When mistake is alleged, an unambiguous written deed can be altered by parol evidence.
A trial court decision will not be set aside merely because the court applied an incorrect reason, if the result is the same under the correct law and reasoning.
State v. Dimmitt , 2003 ND 111, 665 N.W.2d 692
If a judge impermissibly participates in plea negotiations, and a defendant shows his guilty plea resulted from the influence or confusion caused by the trial court's involvement in the negotiations, the defendant must be permitted to withdraw his guilty plea.
The State's failure to make an agreed upon sentence recommendation may result in a manifest injustice in the sentencing process entitling the defendant to withdraw his guilty plea.
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.
Flattum-Riemers v. Flattum-Riemers , 2003 ND 70, 660 N.W.2d 558
A trial court's decision to change the location of a hearing to a county other than the county of venue will not be reversed on appeal unless the court has abused its discretion.
A party seeking a change of venue under N.D.R.Civ.P. 39.1(b)(1)(C) based upon the convenience of witnesses and furtherance of the ends of justice must demonstrate with specificity the identity of the witnesses, their place of residence, and the nature, necessity, and relevance of their testimony.
A trial court may under N.D.R.Civ.P. 6(d) to shorten the time for serving notice of a motion, and its decision will be reversed on appeal only for an abuse of that discretion.
Vandeberg v. State , 2003 ND 71, 660 N.W.2d 568
The State cannot require a petitioner, in every post-conviction relief case, to prove up his case prior to any hearing merely by moving for summary disposition and asserting the petitioner has offered no evidence to support his claims.
Spagnolia v. Monasky , 2003 ND 65, 660 N.W.2d 223
A contract is ambiguous when rational arguments can be made for different interpretations.
The intention of the parties to a contract must be gathered from the entire instrument and not from isolated clauses.
An implied trust, whether resulting or constructive, must be established by clear and convincing evidence.
An appellate court is not obligated to engage in unassisted searches of the record for evidence to support a litigant's position.
An appealing party has the burden of establishing not only that the trial court erred but that such error was highly prejudicial to his cause.
Lesmeister v. ND Workers Comp. , 2003 ND 60, 659 N.W.2d 350
A claimant reapplying for workers compensation benefits must prove she has sustained an actual wage loss caused by a significant change in her compensable medical condition.
A claimant who is terminated for misconduct does not sustain an actual wage loss caused by a significant change in medical condition.
Skjervem v. Minot State Univ. , 2003 ND 52, 658 N.W.2d 750
When no pertinent evidence on an essential element of a party's claim is presented in resistance to a motion for summary judgment, it is presumed no such evidence exists.
Weaver v. State , 2003 ND 47, 658 N.W.2d 352
A trial court properly grants summary disposition of an application for post-conviction relief when the State's motion for summary disposition meets the initial burden of showing the application does not raise a genuine issue of material fact.
Neidviecky v. Neidviecky , 2003 ND 29, 657 N.W.2d 255
In reviewing a trial court's award of custody between two fit parents, the Supreme Court will not retry the case or substitute its judgment for that of the trial court.
Prior to making an equitable distribution of the marital property in a divorce action, the trial court must include as part of the marital estate all of the parties' assets, regardless of the source, and the court must include as marital debt all loans, including those incurred prior to the marriage or after the parties separated.
City of Jamestown v. Tahran , 2003 ND 35, 657 N.W.2d 235
A criminal ordinance prohibiting the storage of junk on any private property, except in an enclosed building or on the premises of a licensed junk dealer, in a city is not a zoning ordinance.
State v. Olson , 2003 ND 23, 656 N.W.2d 650
Probation revocation is not a stage of a criminal proceeding.
Insanity is not a defense in determining whether the defendant violated a condition of probation, but it may be a relevant mitigating factor in determining whether probation should be revoked.
Interest of T.M.H. , 2003 ND 25, 656 N.W.2d 709
Sufficient evidence existed to support placement of a delinquent minor in a residential facility rather than at the minor's parent's home.
State v. Leppert , 2003 ND 15, 656 N.W.2d 718
The 2001 amendments to N.D.C.C. 31-13-03 authorize DNA testing of persons convicted of nonsexual felonies and establish a DNA data base for the test results of persons convicted of those offenses.
DNA testing for persons convicted of enumerated violent, nonsexual felonies is rationally related to a legitimate purpose and does not violate equal protection.
Wagner v. Squibb , 2003 ND 18, 656 N.W.2d 674
Without a sufficient transcript of the trial court proceedings, this Court cannot make a meaningful and intelligent review of a trial court's decision.
Johnson Farms v. McEnroe , 2002 ND 122, 656 N.W.2d 1
A finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing court is left with a definite and firm conviction a mistake has been made.
Wilson v. Farmers Insurance Group , 2003 ND 8, 655 N.W.2d 414
Except when the evidence is such that a reasoning mind could draw only one conclusion, whether an insured substantially complied with an insurance policy provision is a question of fact precluding summary judgment.
Estate of Gleeson , 2002 ND 211, 655 N.W.2d 69
A person protected by a conservatorship retains the capacity to contract or engage in other transactions under our conservatorship statutes.
Sweeney v. Sweeney , 2002 ND 206, 654 N.W.2d 407
A trial court's decision whether to change custody is a finding of fact subject to the clearly erroneous standard of review on appeal.
The word "shall" in N.D.C.C. 14-09-06.5 and 14-09-24 creates a mandatory duty, and, if requested by a party, a trial court must award costs and reasonable attorney's fees if there has been a false allegation of abuse of child which was not made in good faith or if there has been a willful and persistent denial of visitation rights by a custodial parent.
A trial court may not suspend a noncustodial parent's child support obligation as an offset against amounts owed by the custodial parent for interfering with visitation.
Hilton v. ND Education Association , 2002 ND 209, 655 N.W.2d 60
Counselors who were certified under N.D.C.C. ch. 15-36 and who did not devote more than fifty percent of their time to administration duties were teachers under N.D.C.C. ch. 15-38.1.
In action for intentional interference with contract, defendants act with justification if they assert a lawful object which they had a right to assert.
Larson v. Larson , 2002 ND 196, 653 N.W.2d 869
A motion to reconsider an order disposing of a time-tolling, post-trial motion does not extend the time to file a notice of appeal.
State v. Dunn , 2002 ND 189, 653 N.W.2d 688
Persons have a reasonable privacy expectation in their personal property, which is protected by the Fourth Amendment proscription against unreasonable search and seizure.
A warrantless search or seizure of personal property that has been abandoned does not violate the Fourth Amendment. Abandonment is a question of fact.
State v. Fitterer , 2002 ND 170, 652 N.W.2d 908
Moving papers for a motion to suppress evidence require neither exceptional particularity nor supporting affidavits or other evidence, but must provide adequate notice to the trial court and the prosecution of the issues being raised.
At a motion to suppress hearing, the initial burden is the defendant's to show a prima facie case.
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. Jones , 2002 ND 163, 652 N.W.2d 369
Without a showing of excusable neglect, a trial court's denial of a request for an extension of time to file a notice of appeal is not an abuse of discretion.
State v. Faleide , 2002 ND 152, 652 N.W.2d 312
A trial court may not order permanent forfeiture of personal property as a condition of probation.
City of Fargo v. Wonder , 2002 ND 142, 651 N.W.2d 665
When questioning of a suspect does not arise in a "booking" setting, is related to an element of the suspected crime, and is reasonably likely to elicit an incriminating response, the "booking exception" to Miranda does not apply.
The administration of a breath test to determine alcohol consumption is a search.
Only items actually in the record may be included in the appendix on appeal.
Bender v. Beverly Anne, Inc. , 2002 ND 146, 651 N.W.2d 642
Under N.D.R.Civ.P. 60(a), errors in a judgment or order arising from oversights or omission may be corrected by the court at any time of its own initiative or on the motion of any party.
While a prior judgment may be set aside upon a N.D.R.Civ.P. 60(b) motion for relief from a judgment, N.D.R.Civ.P. 60(b) may not be used to impose additional affirmative relief in addition to the relief contained in the prior judgment.
State v. Berger , 2002 ND 143, 651 N.W.2d 639
The beginning date of a probationary term is determined by the intent of the sentencing court as expressed in the language that created the probationary status.
A condition of probation capable of more than one construction is to be construed in favor of the offender.
Grey Bear v. ND Dept. of Human Services , 2002 ND 139, 651 N.W.2d 611
The statutory assignment granted to the Department of Human Services from a recipient of Medicaid benefits is for any third-party recovery a recipient may have for an injury, but is limited to the amount of medical costs provided by the Department for that injury.
A trial court does not abuse its discretion by refusing to delete an amendment to a judgment that was originally requested by the party seeking to delete the amendment.
A trial court lacks personal jurisdiction over a party when the party was neither served with a summons, nor made a voluntary general appearance.
Hoffman v. ND Workers Comp. Bureau , 2002 ND 138, 651 N.W.2d 601
The Workers Compensation Bureau has an obligation to explain its disregard of evidence favorable to a claimant.
A willful failure to give a maximum consistent effort during a functional capacity evaluation can constitute an act of noncompliance with vocational rehabilitation.
State v. Bell , 2002 ND 130, 649 N.W.2d 243
Expert witnesses may testify when no objection is made as to their expertise and qualifications.
Effective assistance of counsel is not denied when counsel fails to ask for an instruction that no longer applies.
Howes v. Kelly Services, Inc. , 2002 ND 208, 654 N.W.2d 422
In considering a motion for judgment as a matter of law, a trial court must view the evidence in the light most favorable to the non-moving party and must accept the truth of the evidence presented by the non-moving party and the truth of all reasonable inferences from that evidence which supports the verdict.
Once one party files a demand for a nine-person jury, other parties are entitled to rely on that demand for the issues it covers, and they need not file their own demand for a nine- person jury.
Geinert v. Geinert , 2002 ND 135, 649 N.W.2d 237
A modification of child support should generally be made effective from the date of the motion to modify, absent good reason to set some other date. If the trial court sets some later date, it must specifically explain its reasons for doing so.
Imputing income to a child support obligor who has voluntarily changed employment, but is not unemployed or underemployed, is within the discretion of the trial court.
Howes v. Kelly Services, Inc. , 2002 ND 131, 649 N.W.2d 218
In considering a motion for judgment as a matter of law, a trial court must view the evidence in the light most favorable to the non-moving party and must accept the truth of the evidence presented by the non-moving party and the truth of all reasonable inferences from that evidence which supports the verdict.
Once one party files a demand for a nine-person jury, other parties are entitled to rely on that demand for the issues it covers, and they need not file their own demand for a nine- person jury.
Piatz v. Austin Mutual Ins. Co. , 2002 ND 115, 646 N.W.2d 681
When the record on appeal does not allow for a meaningful and intelligent review of an alleged error, we will decline to review the issue.
An insurance company does not waive its defenses regarding the reasonableness and necessity of continued treatment by initially paying no-fault benefits.
A witness need not be licensed in a particular field to be an expert, so long as the witness possesses the requisite knowledge, skill, experience, training, or education in that field.
State v. Laib , 2002 ND 95, 644 N.W.2d 878
Whether a defendant establishes statements made in support of a search warrant were intentionally false or made with reckless disregard of the truth is a finding of fact.
A defendant's two prior convictions for class B felony delivery of marijuana qualify as prior offenses to trigger the 20-year mandatory minimum sentence for a current conviction for class A felony possession of methamphetamine with intent to deliver.
Peters-Riemers v. Riemers , 2002 ND 72, 644 N.W.2d 197
When the state constitution was adopted in 1889 there was no common law or statutory right to a jury trial in divorce actions, and, therefore, N.D. Const. art. I, sec. 13 does not provide a right to a jury trial in divorce actions.
Failure to provide truthful and accurate financial information to a potential spouse upon entering a premarital agreement is sufficient ground to render the agreement unenforceable.
N.D. Const. art. XI, sec. 23, providing that a woman's property, upon marriage, remains her separate property and is not liable for the debts of her husband, is not part of our divorce law and has no application to the division of marital assets in dissolving a marriage.
Cass Co. Joint Water Resource District v. 1.43 Acres of Land , 2002 ND 83, 643 N.W.2d 685
A condemnation action is purely in rem, and does not require acquisition of in personam jurisdiction over the owners of the land.
Tribal sovereign immunity does not bar a condemnation action in state court involving land which is owned in fee by the tribe and which is not reservation land, allotted land, aboriginal land, or trust land.
Once the federal government removes restraints on alienation of Indian land by granting a fee patent to a private party, the land does not become inalienable again under the Federal Nonintercourse Act, 25 U.S.C. 177, when it is purchased in fee by an Indian tribe.
Whiteman v. State , 2002 ND 77, 643 N.W.2d 704
A defendant cannot be required to demonstrate how his appeal would have been successful in order to establish that he was prejudiced by his attorney's failure to pursue a requested appeal.
If the evidence raises a reasonable inference of ineffective assistance of counsel, an evidentiary hearing on a post-conviction claim of ineffective assistance of counsel is required.
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.
Klagues v. Maintenance Engineering , 2002 ND 59, 643 N.W.2d 45
The class-action "joint and common interest" generally exists if one class member's failure to collect would increase the recovery of the remaining members, or if the defendant's total liability does not depend on how the recovery of the claim is distributed among the class members. A joint and common interest is not the same as a common question of law or fact.
The class-action "incompatible standards" generally occur when the party opposing the class certification would be unable to comply with one judgment without violating the terms of another judgment.
If claims or defenses of members of the proposed class are based on unique facts or individual relationships with the opposing party, class-action certification is inappropriate.
Marschner v. Marschner , 2002 ND 67, 642 N.W.2d 857
The burden is on the complaining party to demonstrate a trial court's findings of fact are clearly erroneous.
State v. Schmidt , 2002 ND 43, 640 N.W.2d 702
Absent an offer of proof to support the claim, a trial court does not err in denying a motion in limine for a jury instruction on an affirmative defense of innocent mistake of fact.
Gruebele v. Geringer , 2002 ND 38, 640 N.W.2d 454
A claimant's action to quiet title based on adverse possession will fail when the claimant is unable to prove hostile, exclusive, and continuous possession for the statutorily required time.
Dennison v. N.D. Dept. of Human Serv. , 2002 ND 39, 640 N.W.2d 447
The State's recorded homestead statement for old age assistance benefits under N.D.R.C. 50-0707 (1943) affects the right or interest of the State in land in North Dakota under the exception to the Marketable Record Title Act in N.D.C.C. 47-19.1-11(2).
In a quiet title action, parties claiming an interest in a tract of land are entitled to an adjudication of the extent, validity, superiority, and priority of their claims to the land.
State v. Weaver , 2002 ND 4, 638 N.W.2d 30
In reviewing a trial court's denial of a motion for judgment of acquittal, the evidence is viewed in the light most favorable to the prosecution and the appellate court determines only whether there is evidence which could have allowed the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.
When a defendant adopts an all-or-nothing trial strategy and fails to request instructions on lesser included offenses, the trial court's failure to instruct on lesser included offenses does not constitute obvious error.
St. Claire v. State , 2002 ND 10, 638 N.W.2d 39
A trial court may summarily dismiss an application for post-conviction relief if there is no genuine issue of fact and the moving party is entitled to judgment as a matter of law.
Consolidated Telephone v. Western Wireless Corporation , 2001 ND 209, 637 N.W.2d 699
Unless the Federal Communications Commission's rulings and regulations have been appropriately challenged in the proper federal forum, a state court is not at liberty to review the FCC's statutory interpretation even if its soundness is doubted, and the state court must apply the rulings and regulations as written.
State regulatory bodies and state courts have concurrent jurisdiction to determine preemption questions arising under the federal Communications Act.
A "commercial mobile radio service" as defined by federal law need not obtain a certificate of public convenience and necessity from the Public Service Commission to compete with a landline local exchange telephone service in the state.
Gepner v. Fujicolor Processing, Inc. , 2001 ND 207, 637 N.W.2d 681
N.D.R.Civ.P. 60(b) is to be liberally construed and applied, and trial courts should be more lenient in granting motions to vacate default judgments than in vacating judgments in cases which have been tried on their merits.
The Workers Compensation Bureau's determination of benefits to be awarded under the Act are not res judicata on the issue of damages available in an injured worker's separate civil action against an uninsured employer under N.D.C.C. 65-09-02.
A defendant may seek an independent mental examination of the plaintiff under N.D.R.Civ.P. 35(a) by presenting evidence placing the plaintiff's mental condition in controversy.
City of Fargo v. Roberson , 2001 ND 204, 636 N.W.2d 926
The Supreme Court will not consider questions that were not presented to the trial court and are raised for the first time on appeal.
Heick v. Erickson , 2001 ND 200, 636 N.W.2d 913
In reviewing the denial of an application for a writ of certiorari, the Supreme Court does not delve into the merits of the trial court's decision but only determines whether the lower court exceeded its jurisdiction in acting.
Interest of D.P. , 2001 ND 203, 636 N.W.2d 921
For hospitalization in a mental health case, the district court must find by clear and convincing evidence that alternative treatment is not adequate or hospitalization is the least restrictive alternative.
Voge v. Schnaidt , 2001 ND 174, 635 N.W.2d 161
An action for damages for an injury received in a collision of two boats on Lake Sakakawea is governed by the three-year statute of limitations in federal law, rather than the six-year limitation in state law.
State v. Lynch , 2001 ND 173, 635 N.W.2d 164
The introduction of the state toxicologist's list of approved designations medically qualified to draw blood is a foundational requirement for the introduction of blood test results.
Schmidt v. Ward Co. S.S.B. , 2001 ND 169, 634 N.W.2d 506
A conservatorship is a legal device similar to a trust under the law for determining medicaid eligibility.
An applicant for medicaid benefits must prove eligibility, and in determining medicaid eligibility, an asset is actually available even if the applicant must initiate legal proceedings to access the asset.
In determining food stamp eligibility, resources which are not accessible to the household during the period of excepted food stamp certification are excluded from the household's resources.
Dickson v. Dickson , 2001 ND 157, 634 N.W.2d 76
A custodial parent proposing a move to another state is not required to first seek employment outside the general area.
Although relevant to a custodial parent's proposed move to another state, a comparative cost-of-living analysis is not required.
In considering the location of family members on the noneconomic aspects of a proposed move, simply adding the number of relatives in each location and comparing the two numbers is an improper method for determining whether a move will enhance the noneconomic aspects of the lives of the custodial parent and the parties' child.
Heinz v. Heinz , 2001 ND 147, 632 N.W.2d 443
A lengthy marriage supports an equal division of all marital assets.
Spousal support is appropriate for a disadvantaged spouse who has foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse's increased earning capacity.
Spousal support payments must be included in computing monthly net income for child support purposes.
Stoppler v. Stoppler , 2001 ND 148, 633 N.W.2d 142
An award of custody is a finding of fact, which will not be disturbed on appeal unless clearly erroneous.
A trial court's determination on visitation is treated as a finding of fact.
To make an equitable distribution of marital property, the trial court must first determine the net worth of the parties' property.
A court cannot consider property division and spousal support separately in a vacuum, but must examine those issues together.
Lapp v. ND Dept. of Transportation , 2001 ND 140, 632 N.W.2d 419
In determining whether an officer had a reasonable and articulable suspicion to justify an investigatory stop, the test is whether a reasonable person in the officer's position would be justified by some objective manifestation in suspecting potential criminal activity.
Community caretaking justifies law enforcement contact without reasonable suspicion of unlawful conduct.
Selzler v. Selzler , 2001 ND 138, 631 N.W.2d 564
A court, for good cause, may excuse a custody investigator from attending the entire proceedings, but only if the court makes reasonable accommodations to preserve the parties' right to examine the investigator in light of all of the testimony given.
The credibility of witnesses, including expert witnesses, and the weight to be given their testimony are questions of fact subject to the clearly erroneous standard of review.
A presumption against awarding custody to a parent who has sexually abused a child arises if the abuse resulted in serious bodily injury, involved the use of a dangerous weapon, or constituted a pattern within a reasonable time proximate to the proceeding.
State v. Kelly , 2001 ND 135, 631 N.W.2d 167
Inmate disciplinary proceedings and the resulting consequences are civil in nature.
Erroneously admitted evidence that is cumulative to other properly admitted evidence is not prejudicial, does not affect substantial rights of the parties, and is harmless error.
Hoverson v. Hoverson , 2001 ND 124, 629 N.W.2d 573
Economic misconduct requires misconduct which results in waste of marital assets or reduction of the net marital estate.
A trial court must provide sufficient explanation for its property distribution to permit a reviewing court to determine the basis for its distribution.
In calculating an obligor's deduction from net income for tax obligations, a hypothetical federal income tax obligation specified in the child support guidelines must be used..
Berg v. Dakota Boys Ranch Assoc. , 2001 ND 122, 629 N.W.2d 563
If summary judgment is denied, the proper procedure is to move for judgment as a matter of law at the close of the evidence, and the denial of that motion may be reviewed on appeal.
A party raising an argument in a summary judgment motion but abandoning the argument at trial has not preserved the issue for appellate review.
A trial court does not err in admitting a release into evidence if the release was offered for a purpose other than proving liability or the amount of the claim.
Moen v. Thomas , 2001 ND 110, 628 N.W.2d 325
The existence of an attorney-client relationship is ordinarily a question of fact.
Corbett v. Corbett , 2001 ND 113, 628 N.W.2d 312
A trial court's child custody decision and property distribution are findings of fact which will not be reversed on appeal unless clearly erroneous.
Spousal support in an amount to negate child support is inappropriate.
Only court-ordered visitation can be considered in deciding whether there is extended visitation which justifies a downward deviation in the presumptively correct amount of child support.
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.
Moen v. Thomas , 2001 ND 95, 627 N.W.2d 146
Statements of assent to an alleged oral contract are not hearsay but constitute a verbal act.
Parties to a lease may by mutual consent terminate, alter, or amend their agreement.
Rask v. Nodak Mutual Ins. Co. , 2001 ND 94, 626 N.W.2d 693
In determining whether a vehicle is an underinsured motor vehicle, only the policy insuring that motor vehicle is considered.
Wright v. ND Workers Comp. Bureau , 2001 ND 72, 625 N.W.2d 256
Under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, information or evidence that has not been offered, admitted, and made a part of the official record of the proceeding generally is not considered by the administrative agency. N.D.C.C. 28-32-06(2).
An injured employee who has undergone vocational rehabilitation is responsible for making a good faith work search.
To be eligible for partial disability benefits, an injured employee must provide evidence of a loss of earning capacity.
Peters-Riemers v. Riemers , 2001 ND 62, 624 N.W.2d 83
Error may not be predicated upon the erroneous exclusion of evidence unless a substantial right of the party is affected.
Only a willful violation of a protection order results in penalty.
An issue not presented to the trial court will not be considered for the first time on appeal.
Ritter, Laber & Assoc. v. Koch Oil , 2001 ND 56, 623 N.W.2d 424
A trial court has broad discretion to certify an action as a class action under N.D.R.Civ.P. 23.
As a class action progresses and the parties develop evidentiary facts, a trial court may redefine, subclassify, or decertify a previously certified class action.
Rogstad v. Dakota Gasification Co. , 2001 ND 54, 623 N.W.2d 382
An employer who retains the right to control the method, manner, and operative detail of an independent contractor's work is subject to liability for physical harm to employees of the independent contractor for whose safety the employer owes a duty to exercise reasonable care.
An employer's duty to exercise reasonable care for the employee of an independent contractor may arise through express contractual provisions retaining the right to control some part of the operative details of the independent contractor's work or through the employer's actual exercise of retained control of the work.
Hall Family Living Trust v. Mutual Service Life Ins. Co. , 2001 ND 46, 623 N.W.2d 32
An application for insurance stating the policy does not take effect until delivery creates no insurance contract until the policy is delivered.
The scope of an agent's authority to bind a principal is a question of fact which ordinarily is inappropriate for summary judgment.
Greenwood v. Paracelsus Health Care , 2001 ND 28, 622 N.W.2d 195
Section 28-01-46, N.D.C.C., which requires an affidavit of an expert to support an allegation of medical malpractice, does not apply once the trial has begun.
To establish a prima facie case of medical malpractice, the plaintiff must present evidence establishing the applicable standard of care, a violation of that standard, and a causal relationship between the violation and the alleged harm.
A medical malpractice plaintiff may establish the relevant standard of care and a prima facie case through cross-examination of the defendant physician.
Wetzel v. ND Dept. of Transportation , 2001 ND 35, 622 N.W.2d 180
Whether a person has been afforded a reasonable opportunity to contact an attorney is a mixed question of law and fact.
The reasonableness of the opportunity given an arrestee to contact an attorney is tested objectively, focusing on the totality of the circumstances.
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.
Estate of Lutz , 2000 ND 226, 620 N.W.2d 589
Whether services performed by a family member are so exceptional and extraordinary as to imply a contract to pay for those services is a question of fact.
Lack of legal advice to a prospective spouse to obtain independent counsel is a significant factor in weighing the voluntariness of a premarital agreement, but the presence of independent counsel is not a prerequisite to enforceability.
Separate statutes under the Uniform Premarital Agreement Act govern unconscionability at the time the agreement was executed, unconscionability at the time of separation or marital dissolution, and unconscionability that may result from enforcement at any time, including the time of death.
A spouse can waive any right of inheritance and succession in a valid and enforceable premarital agreement and consent to will.
Attorney fees are not allowed to a successful litigant unless expressly authorized by statute or agreement.
Berger v. ND Workers Comp. , 2000 ND 224, 620 N.W.2d 576
An owner of a business is not entitled to workers compensation benefits without securing optional coverage.
In determining whether a claimant was an employee or an owner when he was injured, the rules for determining whether a person is an independent contractor or an employee, do not apply, and the Bureau may consider other evidence or factors.
Davenport v. State , 2000 ND 218, 620 N.W.2d 164
Although a trial court must inform a defendant of all direct consequences of a guilty plea, it need not advise a defendant of collateral consequences
The requirement for registration of a convicted sex offender is a collateral consequence.
Mayo v. Mayo , 2000 ND 204, 619 N.W.2d 631
In deciding a motion to modify custody, a trial court must consider whether there has been a significant change of circumstances and whether modification is necessary to serve the best interests of the child.
The credibility of witnesses, including experts, and the weight to be given their testimony are questions of fact subject to the clearly erroneous standard of review.
A trial court may question witnesses.
Center Mutual Insurance Co. v. Thompson , 2000 ND 192, 618 N.W.2d 505
Terms of an insurance policy are given their ordinary, usual, and commonly accepted meaning.
The absence of a definition in an insurance policy in and of itself does not establish ambiguity or mean the issue is automatically resolved in favor of the insured.
The existence of an employment relationship is ordinarily a question of fact.
Schaefer v. Souris River Telecom. , 2000 ND 187, 618 N.W.2d 175
A stipulation as to foundation does not eliminate a trial court's discretion to reject evidence on grounds of relevance.
Allowing a party to read the deposition of an opposing party's witness into evidence is not necessarily an abuse of discretion.
Denying a motion for new trial brought on the ground a party abused discovery by failing to provide a document relating to liability is not an abuse of discretion when liability is not at issue in the trial.
Fandrich v. Wells Co. Bd. of Co. Comm. , 2000 ND 181, 618 N.W.2d 166
While a court may issue a writ of mandamus ordering a government entity to comply with applicable law, it cannot control the government entity's discretion in determining the methods to be used in complying with the law.
Political subdivisions have no duty to provide perfect drainage.
When each party prevails on some issues, there is no single prevailing party against whom disbursements may be taxed.
Rott v. ND Department of Transportation , 2000 ND 175, 617 N.W.2d 475
A statute providing for the cancellation of a minor's driver's license upon accumulation of a point total in excess of five points is not applied retroactively when the offense triggering the cancellation occurs after the effective date of the statute. Enactment of the statute does not change the status of the minor's driver's license so as to require notification of the statute's enactment.
Egeland v. Continental Resources, Inc. , 2000 ND 169, 616 N.W.2d 861
Consent from the landowner is not required when a lessee applies to the Industrial Commission to force pool property.
A Pugh clause severs an oil and gas lease when less than all of the leasehold is included in a pooled spacing unit, and production on the pooled portion does not normally constitute production on the part not pooled.
A continuous drilling operations clause continued to operate lease-wide after expiration of the primary term even though the Pugh clause limited the operation and effect of the habendum clause to the confines of each spacing unit.
State v. Steen , 2000 ND 152, 615 N.W.2d 555
Special verdicts or interrogatories in criminal cases are disfavored.
Evidence of intoxication is relevant in a negligent homicide case if it is indicative of a defendant's condition at a relevant time.
The trial court, rather than the jury, has the duty of deciding for sentencing purposes whether a negligent homicide conviction is based in part on evidence of the defendant's operation of a motor vehicle while under the influence of alcohol.
The trial court must prepare a written record of its findings on controverted statements in a presentence investigation report, or state its decision to not take the matter controverted into account when imposing sentence, and attach it to the presentence investigation report.
Peplinski v. County of Richland , 2000 ND 156, 615 N.W.2d 546
The giving of actual notice of a tax sale is jurisdictional, and any irregularity in the publication of the notice which is not an essential part of proving no notice was given is not a jurisdictional defect.
An appellant who fails to provide a complete transcript of trial court proceedings assumes the consequences of that failure.
Mann v. Zabolotny , 2000 ND 160, 615 N.W.2d 526
Amendment of pleadings by implication to conform to the evidence under N.D.R.Civ.P. 15(b) arises only when the evidence introduced is not relevant to any issue pleaded in the case.
ND Dept. of Human Services v. Brenden , 2000 ND 155, 615 N.W.2d 538
If a notice to creditors is published and mailed in compliance with N.D.C.C. 30.1-19-01, the time for original presentation of claims expires three months after the date of the first publication and mailing of notice to creditors.
If no notice to creditors is either mailed or published, the time for original presentation of claims is three years after the decedent's death.
A copy of a petition beginning probate proceedings and list of legatees, surviving joint tenants, and heirs at law sent to the Department of Human Services is not a notice to creditors.
Holen v. ND Workers Comp. Bureau , 2000 ND 145, 615 N.W.2d 141
A claimant must demonstrate substantial prejudice to recover relief for delay in administrative proceedings.
The Bureau must prove the claimant knew of specific work restrictions and intentionally engaged in activities exceeding those restrictions before it can deny benefits based on aggravation of a prior injury.
Ruscheinsky v. Ulrich , 2000 ND 133, 612 N.W.2d 283
An order for child support that is due and unpaid can constitute a judgment by operation of law. Since April 2, 1999, such judgments are no longer subject to a statute of limitations or to cancellation.
The child support arrearage amount on a certified State Disbursement Unit ledger is prima facie evidence of the state's records.
Tangen v. ND Workers Comp. , 2000 ND 135, 613 N.W.2d 490
Although the law in effect at the time of injury ordinarily governs workers compensation claims, the law in effect at the time of aggravation of a prior work injury governs a reapplication for disability benefits.
To deny aggravation benefits because the employee exceeded work restrictions, the Bureau must prove the claimant knew of the specific work restrictions and intentionally engaged in activities which exceeded those restrictions.
Olson v. Olson, , 2000 ND 120, 611 N.W.2d 892
A custodial parent has the burden of proving a proposed move to another state is in the best interest of the child.
Nelson v. Nelson , 2000 ND 118, 617 N.W.2d 131
Child support summary judgment summarily affirmed under N.D.R.App.P. 35.1(a)(7).
State v. Torgerson , 2000 ND 105, 611 N.W.2d 182
The limited record in this case does not establish a substantial failure to comply with jury selection procedures under N.D.C.C. ch. 27-09.1.
State ex rel. D.D. v. G.K. , 2000 ND 101, 611 N.W.2d 179
The more rigorous requirements of N.D.C.C. 14-09-06.6(1)-(5) apply when a motion to modify custody is brought or made within two years of a custody determination.
Dickie v. Farmers Union Oil Co. , 2000 ND 111, 611 N.W.2d 168
Section 28-01.3-08, N.D.C.C., the North Dakota Products Liability Act statute of repose, creates an unconstitutional classification in violation of the equal protection rights provided under N.D. Const. art. 1, sec. 21.
Mandan Education Assoc. v. Mandan Public School Dist. No. 1 , 2000 ND 92, 610 N.W.2d 64
A decision on the merits without raising time limit violations can waive the right to later assert those violations as a failure to exhaust administrative remedies.
The school district and teacher representative organization must negotiate in good faith the interpretation of an existent agreement. A course of dealing and usage should be given effect when interpreting a contract ambiguity.
Webster v. Regan , 2000 ND 89, 609 N.W.2d 733
When a stipulation is incorporated into a judgment, the stipulation and judgment are merged, and the court's intent will control, not the intent of the parties to the stipulation. Extrinsic evidence of the parties' intent is considered only if, after an examination of the judgment, the stipulated language is ambiguous and the incorporating court's intent cannot be determined.
Webster v. Regan , 2000 ND 18, 605 N.W.2d 808
When a stipulation is incorporated into a judgment, the stipulation and judgment are merged, and the court's intent will control, not the intent of the parties to the stipulation. Extrinsic evidence of the parties' intent is considered only if, after an examination of the judgment, the stipulated language is ambiguous and the incorporating court's intent cannot be determined.
Baier v. Workers Comp. Bureau , 2000 ND 78, 609 N.W.2d 722
When an agency issues a final order after a formal hearing, administrative res judicata bars the agency from raising in a subsequent proceeding issues which could have been raised in the first hearing.
Olvera v. Johnson , 2000 ND 80, 609 N.W.2d 432
Under 1913 N.D. Compiled Laws ch. 30, foreclosure by advertisement of a 1915 mortgage foreclosed mineral interests severed from the surface after the mortgage was entered.
Roe v. Rothe-Seeger , 2000 ND 63, 608 N.W.2d 289
The authority to issue supervisory writs is discretionary, and cannot be invoked as a matter of right.
The authority to issue supervisory writs is exercised rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases in which there is no adequate alternative remedy.
Braunberger v. Interstate Engineering, Inc. , 2000 ND 45, 607 N.W.2d 904
A party cannot be awarded costs and disbursements under a vacated judgment.
A prevailing parties who receives a judgment less favorable than the N.D.R.Civ.P. 68 offer are entitled to pre-offer costs, but must pay both parties' post-offer costs.
Recovery of costs is not limited to admissible evidence.
Unless authorized by statute, attorney meal and hotel expenses cannot be awarded as costs and disbursements.
DeCoteau v. State , 2000 ND 44, 608 N.W.2d 240
To establish ineffective assistance of counsel, the defendant must prove his counsel's performance was defective, and his defense was prejudiced by the proven defect.
An unsuccessful trial strategy does not make defense counsel's performance defective.
ND Dept. of Human Services v. Caroline , 2000 ND 59, 607 N.W.2d 882
The Department of Human Services may recover Medicaid benefit payments from assets transferred by the Medicaid recipient to a surviving spouse and traceable to the surviving spouse's estate. Only assets in which the deceased recipient once held an interest can be traced. The surviving spouse's separately owned assets in which the recipient never held an interest are not subject to recovery.
Interest of K.M.G. , 2000 ND 50, 607 N.W.2d 248
A custody order cannot be modified for two years after entry unless the court finds: (a) a persistent and willful denial or interference with visitation; (b) the child's present environment may endanger the child's physical or emotional health or impair the child's emotional development; or (c) the primary physical care of the child has changed to the other parent for longer than six months, and the modification is necessary to serve the best interest of the child.
State v. Jensen , 2000 ND 28, 606 N.W.2d 507
Under N.D.R.Ev. 412, evidence that an alleged victim of sexual misconduct engaged in other sexual behavior or evidence of the victim's sexual predisposition is generally inadmissible.
A party must file a written motion under the rule requesting the court to admit specific instances of sexual behavior between the alleged victim and the accused, and failure to make a timely motion is reason alone for the court to deny admissibility of the evidence.
Estate of Flynn , 2000 ND 24, 606 N.W.2d 104
Courts construe the plain and unambiguous language of a will to effectuate the testator's intent.
The doctrine of merger will not be applied to defeat a testator's intent.
Coteau Properties v. Oster , 2000 ND 23, 606 N.W.2d 876
When considering a permanent water impoundment amendment to a mining and reclamation operations permit, the Public Service Commission must make its own assessment of the water impoundment's compliance with state law.
Interest of C.J.C. , 2000 ND 27, 606 N.W.2d 117
The Uniform Parentage Act impliedly grants trial courts the power to change a minor child's surname if in the child's best interests.
On appeal, the appellant assumes the consequences and the risk of failure to file a transcript.
An interim order appointing a guardian ad litem is not a final judgment, and is subject to change at any time prior to entry of a final judgment.
Cost taxation is within the trial court's discretion and will not be disturbed on appeal unless it is affirmatively established the trial court abused its discretion.
Weigel v. Weigel , 2000 ND 16, 604 N.W.2d 462
A spouse who remains at home and out of the workforce to maintain a marital residence, act as a homemaker, or provide child care has forgone opportunities and lost advantages that accrue from work experience and employment history.
Lyon v. Ford Motor Company , 2000 ND 12, 604 N.W.2d 453
A party who voluntarily pays and satisfies a judgment waives the right to appeal from the judgment.
City of Minot v. Johnson , 1999 ND 241, 603 N.W.2d 485
An investigatory stop by a police officer must be supported by a reasonable and articulable suspicion a crime was or is about to be committed.
Observation of an illegal activity constitutes probable cause to arrest, a higher standard than a reasonable suspicion.
An area's reputation for criminal activity is an articulable fact on which an officer may rely, but standing alone is not a reasonable and articulable suspicion a crime was or is about to be committed.
State Bank & Trust of Kenmare v. Brekke , 1999 ND 212, 602 N.W.2d 681
Acquiring title by adverse possession bars the remedy of ejectment and takes away all other remedy of the former owner.
A quitclaim deed may contain a special warranty of title against claims by, under, or through the grantor.
Lemer a/k/a Hager v. Campbell , 1999 ND 223, 602 N.W.2d 686
The prevailing party for purposes of awarding costs and disbursements is based upon success upon the merits, not upon damages, and a party may be the prevailing party although recovering no award of damages.
The scope and substance of counsel's opening and closing arguments lie within the trial court's discretion.
Prejudice due to the probative force of evidence is not unfair prejudice.
Generally, a court should not disturb a jury's damages verdict unless it is so excessive or inadequate as to be without support in the evidence.
Huber v. Oliver County , 1999 ND 220, 602 N.W.2d 710
A trial court is not required to instruct the jury in the exact language sought by a party if the instructions adequately and correctly inform the jury of the applicable law.
Counties have a duty to construct township roads in a way that maintains the natural flow and drainage of surface waters to the extent established engineering standards or sound engineering design practice would require as prudent under the circumstances.
State v. Mathre , 1999 ND 224, 603 N.W.2d 173
A trial court does not obviously err by instructing as to self-defense but not as to lesser included offenses when a defendant tried for aggravated assault requests a self-defense instruction but does not request instructions as to lesser included offenses.
In the Interest of C.R., a Minor Child , 1999 ND 221, 602 N.W.2d 520
Although incarceration, by itself, does not establish abandonment of a child for purposes of terminating parental rights, the probability of serious mental or emotional harm to the child may be established by prognostic evidence the parent's current inability to care for the child will continue long enough to render improbable the successful assimilation of the child into a family if the parent's rights are not terminated.
Kuntz v. Muehler , 1999 ND 215, 603 N.W.2d 43
The two-year professional malpractice statute of limitations does not apply to certified financial planners.
Interest of Z.R. and J.V., Children , 1999 ND 214, 602 N.W.2d 723
To terminate the parental rights of a deprived child, the State must prove by clear and convincing evidence the conditions and causes of the deprivation are likely to continue and the child is suffering or in the future will suffer serious physical, mental, moral, or emotional harm.
Although review of parental termination is de novo, the appellate court will give appreciable weight to the findings of the juvenile court.
Barnes v. St. Joseph's Hospital , 1999 ND 204, 601 N.W.2d 587
The duty of good faith and fair dealing does not obligate a party to accept a material change in the contract's terms or to assume obligations that vary or contradict its express provisions.
Each party to a contract impliedly agrees not to prevent the other party from performing and not to render performance impossible.
Peterson v. Peterson , 1999 ND 191, 600 N.W.2d 851
A trial court's determinations on valuation and division of property are treated as findings of fact and will be reversed on appeal only if clearly erroneous. To make an equitable distribution of property, the trial court must include in the marital estate all of the parties' assets, regardless of source.
Laude v. Laude , 1999 ND 203, 600 N.W.2d 848
A permanent spousal support award is not a claim against an obligor's retirement pension when the obligee has waived all right, title, interest, and claim to the pension and the parties expressly stipulated to submit the spousal support issue to the trial court.
Community National Bk. of Grand Forks v. Husain , 1999 ND 201, 600 N.W.2d 886
A disputed issue of material fact precludes entry of summary judgment under N.D.R.Civ.P. 56(c).
References in an appellate brief to matters not in the record violate N.D.R.App.P. 30(a), and may result in sanctions.
Frank v. Traynor , 1999 ND 183, 600 N.W.2d 516
A Workers Compensation Bureau determination that a request for rehearing is not timely or sufficient is appealable.
A district court does not abuse its discretion in denying a writ of mandamus if the petitioner has a plain, speedy, and adequate remedy in the ordinary course of law through a direct appeal from an administrative decision.
Svedberg v. ND Workers Comp. , 1999 ND 181, 599 N.W.2d 323
A vocational rehabilitation plan must take into account all of the injured worker's functional limitations existing at the time of the injury, not only those directly caused by the current work injury.
Jose v. Norwest Bank North Dakota, N.A. , 1999 ND 175, 599 N.W.2d 293
An explicit and conspicuous disclaimer in an employee personnel manual, stating no contract rights exist or the policies in it are not intended to create contractual rights, demonstrates the employer's intent the manual be only a guide for the employee.
To establish a public policy exception to the at-will employment doctrine, public policy must be evidenced by a constitutional or statutory provision expressing a clear and compelling public policy against the challenged discharge.
To be defamatory, a statement must be false.
Grynberg v. Dome Petroleum , 1999 ND 167, 599 N.W.2d 261
A judgment will not be reversed merely because the trial court's reasoning in arriving at the judgment was incorrect, if the result is the same under the correct law and reasoning.
The interpretation of an unambiguous contract is a question of law.
Wagner v. Wagner , 1999 ND 169, 598 N.W.2d 855
A North Dakota district court does not have subject-matter jurisdiction to enforce a bankruptcy stipulation that has not been incorporated into a divorce decree.
An order may be issued nunc pro tunc to clarify, but not modify, parties' rights.
Nygaard v. Continental Resources, Inc. , 1999 ND 172, 598 N.W.2d 851
Payment or offer of payment in any manner current in the ordinary course of business is sufficient unless the obligee demands payment in legal tender and gives any extension of time reasonably necessary to procure it.
An award of attorney fees for a frivolous claim for relief lies within the sound discretion of the trial court.
Werlinger; v. Champion Healthcare Corp , 1999 ND 173, 598 N.W.2d 820
An order certifying a class action is an appealable order.
A decision to certify a class action will be overturned on appeal only if the district court has abused its discretion.
In determining if a class action will provide a fair and efficient adjudication of the controversy, the court must consider and weigh the thirteen factors listed under N.D.R.Civ.P. 23(c)(1). No one factor of the thirteen predominates over the others, and the district court need not explicitly address all the factors. The district court has broad discretion in reaching its decision, but it cannot rely on an incorrect analysis of a factor in reaching its ultimate decision on whether to grant class certification.
Ketelsen v. Ketelsen , 1999 ND 148, 598 N.W.2d 185
A trial court cannot consider issues of property division and spousal support separately, in a vacuum, but must examine those issues together.
A trial court's modification of spousal support based upon changed circumstances is a finding of fact which will not be set aside on appeal unless it is clearly erroneous.
Strom-Sell v. Council for Concerned Citizens , 1999 ND 132, 597 N.W.2d 414
A trial court's denial of a motion for summary judgment does not preclude it from considering a subsequent motion for summary judgment by the same party.
Officers, directors, and agents are not generally liable for a corporation's debts, absent fraud, other recognized extraordinary circumstances, or a specific statutory provision imposing liability.
State v. Leinen , 1999 ND 138, 598 N.W.2d 102
N.D.R.Ev. 801(d)(1)(ii) does not allow prior consistent statements merely because a witness has been discredited, or to bolster the veracity of the witness's story. To qualify a statement as nonhearsay under N.D.R.Ev. 801(d)(1)(ii) the declarant must have testified and been subject to cross-examination about the statement, the statement must be offered to rebut a charge of recent fabrication or improper motive or influence, and the statement must be a prior consistent statement made before the charge of recent fabrication or improper influence arose.
Tormaschy v. Tormaschy , 1999 ND 131, 596 N.W.2d 337
Waiver is an issue of fact reviewed under the clearly erroneous standard.
Generally, issues not raised and adequately presented to the district court for a proper determination will not be considered on appeal.
Nefzger v. Nefzger , 1999 ND 119, 595 N.W.2d 583
Alcoholism is not an absolute bar to a parent obtaining child custody.
A parent's extramarital relationships and past marijuana usage are not irrefutable indications of lack of moral fitness.
A guardian ad litem's recommendation on child custody is not conclusive.
Temporary rehabilitative spousal support can be awarded to a disadvantaged spouse to continue an accustomed standard of living.
Interest of R.K.E. , 1999 ND 106, 594 N.W.2d 702
An order committing a delinquent or unruly child to the division of juvenile services may be extended for an additional two-year period upon a showing by clear and convincing evidence that the extension is necessary for the treatment or rehabilitation of the child.
Interest of M.S. , 1999 ND 117, 594 N.W.2d 924
The district court may decide which mental health expert testimony is more credible.
Serenko v. City of Wilton , 1999 ND 88, 593 N.W.2d 368
There is no constitutional right to notice when a municipality initially decides to construct an improvement.
N.D.C.C. 40-22-15, which requires publication of a map of a proposed improvement district, creates a purely statutory right, and a city's failure to publish the map does not violate procedural due process.
A special assessment commission has broad discretion in selecting the method to determine benefits to individual properties within an improvement district, and its decision will be overturned only if the commission acted arbitrarily, capriciously, or unreasonably.
Barth v. Barth , 1999 ND 91, 593 N.W.2d 359
Sanctions for discovery abuse must be reasonably proportionate to the misconduct.
State v. Mund , 1999 ND 90, 593 N.W.2d 760
Prior guilty pleas used for penalty enhancement may only be collaterally attacked based on validity of waiver of the right to counsel.
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 ex rel. Melling v. Ness , 1999 ND 73, 592 N.W.2d 565
A move to another state which benefits the health and well-being of a custodial parent is beneficial to the parent's child, and is in the child's best interests.
Evidence of a firm job offer in another state is relevant in assessing economic advantages for a custodial parent's move to that state.
If a trial court grants a custodial parent's motion to remove a child from the state, evidence related to the proposed move cannot support a competing motion for change of custody.
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.
Weigel v. Weigel , 1999 ND 55, 591 N.W.2d 123
The reasons for a substitution of judge should be stated on the record.
N.D.R.Civ.P. 63 requires a successor judge to certify familiarity with the record and to determine the case may be completed before that judge without prejudice to the parties.
State v. Beckman , 1999 ND 54, 591 N.W.2d 120
Under N.D.R.Crim.P. 32, a defendant must be given a chance to personally address the trial court before being sentenced.
To substantially comply with N.D.R.Crim.P. 11, the trial court must fully advise the defendant of the constitutional rights the defendant waives with a plea of guilty.
The purpose of the inquiry required by the second sentence of N.D.R.Crim.P. 11(c), is to ascertain whether the plea of guilty is the result of plea negotiations.
Johnson v. Job Service North Dakota,et al. , 1999 ND 42, 590 N.W.2d 877
An executive director's refusal to answer, without her attorney present, questions asked by her board of directors through its attorney was disqualifying misconduct under N.D.C.C. 52-06-02.
City of Bismarck v. Towne , 1999 ND 49, 590 N.W.2d 893
Failure to object to parts or omissions of proposed jury instructions operates as a waiver under N.D.R.Crim.P. (30)(c) of the right on appeal to complain of instructions that were or were not given.
To preserve sufficiency of the evidence in a jury trial for review on appeal, the defendant must move the trial court for a judgment of acquittal under N.D.R.Crim.P. 29.
Kerzman v. ND Workers Comp. Bureau , 1999 ND 44, 590 N.W.2d 888
A contractual stipulation must be construed as a whole to give meaning to each provision.
A workers compensation claimant may agree to forego future disability benefits in exchange for a lump sum settlement.
Under N.D.C.C. 28-32-12.2(1), a hearing officer means the entity presiding at an administrative hearing.
Burlington Northern & Santa Fe Railway Co v Burlington Resources Oil & Gas , 1999 ND 39, 590 N.W.2d 433
A principal's authorization for an agent to deal "for its own account" with the principal's property is an "authority expressed in general terms" under N.D.C.C. 3-02-05, thus rendering the obligations of a trustee in N.D.C.C. 59-01-09 to 59-01-19 applicable to the agent's self-dealing.
Leingang v. George , 1999 ND 32, 589 N.W.2d 585
Under Rule 10, N.D.R.App.P., the appellant is required to file the trial transcript. The appellant assumes the risks associated with failure to submit a transcript if the Court is incapable of meaningful review of alleged error without a transcript.
When the district court has provided counsel with a written copy of proposed jury instructions and an opportunity to object, under N.D.R.Civ.P. 51., an objection must be made to any instruction or part of an instruction given or omitted to preserve the issue for appeal.
Ramstad v. Biewer , 1999 ND 23, 589 N.W.2d 905
Modifying child custody is a two-step inquiry. First, there must have been a significant change of circumstance since the original custody determination. Second, the significant change of circumstance must compel or require, in the best interests of the child, a change of custody.
Martin, f/k/a Rath v. Rath , 1999 ND 31, 589 N.W.2d 896
Undocketed automatic judgments for past-due child support obligations under N.D.C.C. 14-08.1-05 are treated as ordinary judgments under state law.
Under N.D.C.C. 9-12-07, if no contrary intent is expressed, payments made for child support arrearage should be applied first to any interest due on the earliest maturing child support obligation, and then to any principal due on that obligation, with any remaining excess going to the next earliest maturing support obligation in a similar manner.
Fuchs v. Moore , 1999 ND 27, 589 N.W.2d 902
Administrative res judicata bars an agency from raising issues in new proceedings which could have been resolved in prior formal adjudicative proceedings that have become final.
License suspension proceedings for driver failing a DUI test are not barred, under administrative res judicata doctrine, by prior revocation proceedings, based upon driver's failure to test, which were dismissed prior to formal adjudication.
Hoffner v. Bismarck Public School District , 1999 ND 3, 589 N.W.2d 195
The notice of contemplated nonrenewal of a teacher's contract must list reasons for nonrenewal which are drawn from findings arising from the teacher's written evaluations.
In determining whether to nonrenew a teacher's contract, the school board is not limited to problems identified in the teacher's most recent evaluation, but may consider matters raised in prior evaluations.
State v. Gagnon , 1999 ND 13, 589 N.W.2d 560
For use of former testimony at trial, inquiry as to the unavailability of a witness is whether the State has made a good-faith effort to locate the witness.
A defendant who has raised self-defense may introduce evidence of the victim's violent or aggressive character.
Generally, character may be proved by reputation or opinion testimony only. N.D.R.Ev. Rule 405 allows character to be proved by specific instances of conduct when character is in direct issue, or when used on cross-examination to rebut an assertion concerning a person's character.
When a defendant has prior knowledge of specific instances of a victim's violent or aggressive behavior, evidence of such specific instances may be offered to justify the defendant's actions or show the defendant's state of mind.
State v. Herrick , 1999 ND 1, 588 N.W.2d 847
When, prior to State v. Herrick, 1997 ND 155, 567 N.W.2d 336, a no-knock search warrant was issued on a per se basis under N.D.C.C. 19.1-03.1-32(3) because drugs were alleged to be present in the place to be searched, the good-faith exception to the exclusionary rule applies.
Botnen v. Lukens , 1998 ND 224, 587 N.W.2d 141
Whenever specialized knowledge will assist the trier of fact in understanding the evidence or determining a fact in issue, expert testimony is admissible.
An award of custody of a child to grandparents, rather than to one or both of the child's natural parents, is clearly erroneous unless exceptional circumstances require such a custody disposition in the best interests of the child.
An alternating custody arrangement requires a factual finding it is in the child's best interest.
Barker a/k/a Violet v. Ness , 1998 ND 223, 587 N.W.2d 183
There is no absolute right to a jury trial in an equitable proceeding.
Sections 9-09-02 to 9-09-04, N.D.C.C., are intended to permit a rescission at law, while N.D.C.C. 32-04-21 to 32-04-23 are intended to permit a suit in equity for rescission.
Equitable rescission envisions restoration of both parties to the status quo prior to the transaction.
Minot Town & Country v. Fireman's Fund Insurance Co. , 1998 ND 215, 587 N.W.2d 189
An appraisal proceeding is not an arbitration proceeding. Arbitration generally decides an entire controversy, while an appraisal generally establishes the amount of loss only, and not liability under the insurance contract.
When the proceeding defined in the insurance contract unambiguously calls for an appraisal proceeding, the Uniform Arbitration Act, N.D.C.C. ch. 32-29.2, does not apply.
Scott v. ND Workers Comp. Bureau , 1998 ND 221, 587 N.W.2d 153
Section 28-32-12.1(3), N.D.C.C., prohibits ex parte communications after a hearing between the attorney who represented an agency at a hearing and the decision maker who will decide whether to adopt or reject the ALJ's recommended decision.
The Bureau's routine practice of improper ex parte communications constituted a systemic disregard of the law which warranted reversal.
State v. Vick , 1998 ND 214, 587 N.W.2d 567
Restitution orders are reviewed under an abuse of discretion standard.
A trial court may order restitution paid to an insurance company which had not requested restitution and was not present at the restitution hearing. Under N.D.C.C. 12.1-32-08 the trial court's duty to order restitution does not change if restitution is not specifically requested.
An insurance company can be a "victim or other recipient" to whom restitution may be awarded.
Lee v. ND Workers Comp. Bureau , 1998 ND 218, 587 N.W.2d 423
Under N.D.C.C. 65-05-09.1, the Workers Compensation Bureau is entitled to offset one-half of social security benefits, less attorney fees, from a claimant's state disability payments.
The offset under the statute applies even though the Social Security Administration has offset all or part of a claimant's partial impairment award from her social security benefit.
Schmitz v. Schmitz , 1998 ND 203, 586 N.W.2d 490
For purposes of modifying spousal support, a contemplated change is one taken into consideration by the district court when fashioning the original decree.
The inability of ex-spouse to reach maximum rehabilitation may be a changed circumstance warranting a modification of spousal support.
Pic v. City of Grafton , 1998 ND 202, 586 N.W.2d 159
There is no "de novo" judicial review of decisions by local governing bodies under N.D.C.C. 28-34-01. Judicial review is limited to whether the decision is arbitrary, capricious, or unreasonabl
e. City which held a hearing, considered the evidence, and concluded the cost of repairs exceeded the value of a structure did not act arbitrarily, capriciously, or unreasonably in ordering its demolition.
Kautzman v. Kautzman , 1998 ND 192, 585 N.W.2d 561
When parties live together and then marry, it is appropriate for the court to consider all of their time together in dividing the marital estate.
The principal factors for consideration in awarding attorney fees in a divorce action are the parties' needs and ability to pay. The trial court may also consider whether one party's actions unreasonably increased the time spent on the dispute.
State v. Vondal , 1998 ND 188, 585 N.W.2d 129
Failure to receive a copy of conditions of probation reimposed upon a Rule 35, N.D.R.Crim.P., reduction of sentence will not invalidate a subsequent revocation of probation for violations of certain conditions if the defendant had prior actual and clear notice of the conditions.
The State v. Lewis doctrine regarding court-appointed counsel is still the proper procedure in North Dakota when counsel believes an appeal to be without merit.
Lawrence v. Delkamp , 1998 ND 178, 584 N.W.2d 515
Under N.D.C.C.14-09-09.10(8) and N.D. Admin. Code 75-02-04.1-01(5), employer-paid benefits which included contributions to a 401(k) plan, medical insurance premiums, dental insurance premiums, life insurance premiums, accidental death and disability insurance premiums, long-term disability insurance premiums, and pension fund contributions were all properly included as gross income for a determination of the employee's child support obligation.
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.
Jarvis v. Jarvis , 1998 ND 163, 584 N.W.2d 84
Uninsured medical expenses paid by the obligor are a deduction from gross income when setting the child support amount, consequently they are not part of the child support amount determined by the guidelines.
The cost of a child's daycare may justify an increase from the guideline amount of child support.
The child support guidelines prohibit a court from considering an obligor's daily living expenses when setting child support.
Eggl v. Fleetguard, Inc. , 1998 ND 166, 583 N.W.2d 812
There is no time limit for attacking a void judgment under N.D.R.Civ.P. 60(b)(iv).
Mail service upon a foreign corporation under N.D.R.Civ.P. 4(d)(3)(C) must be addressed to an officer, director, or other responsible person in management.
A corporation whose only contact with North Dakota was shipping products into the state for resale by independent retailers was not "transacting business" in the state for purposes of N.D.C.C. 10-22-10.
Breding v. State , 1998 ND 170, 584 N.W.2d 493
Defense counsel did not provide ineffective assistance by failing to object to or attack the credibility of a prosecution witness's testimony on the ground the witness had used hypnosis to enhance his recall of events.
Trial strategy choices by defense counsel made after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable.
Eagle v. ND Workers Compensation Bureau , 1998 ND 154, 583 N.W.2d 97
The rational basis standard of review applies to an equal protection challenge to the limitations on vocational rehabilitation benefits under N.D.C.C. 65-05.1-01(3) and 65-05.1-06.1(2)(i)(1).
The rehabilitation limitations in N.D.C.C. 65-05.1-01(3) and 65-05.1-06.1(2)(i)(1) are rationally related to legitimate governmental purposes and do not violate the equal protection clauses of the state and federal constitutions.
Shiek v. ND Workers Comp. Bureau , 1998 ND 139, 582 N.W.2d 639
Under the pre-1995 version of the retirement presumption statute, N.D.C.C. 65-05-09.3, the claimant has the burden of proving he or she is permanently and totally disabled, and if the claimant does so, the burden shifts to the Bureau to prove the claimant is not permanently and totally disabled if it seeks to hold the claimant ineligible for further benefits.
City of Fargo v. Lee , 1998 ND 126, 580 N.W.2d 580
When reviewing the disposition of a motion to suppress evidence, the Supreme Court defers to the trial court's findings of fact.
N.D.C.C. 29-06-15 authorizes a law enforcement officer to make an arrest without a warrant if an offense is committed in the officer's presence, but it does not authorize a warrantless entry into the home to search.
The burden is on the government to demonstrate exigent circumstances exist to overcome the presumption that a warrantless search is unreasonable.
Donarski v. Donarski , 1998 ND 128, 581 N.W.2d 130
It is appropriate for the trial court to award permanent spousal support to a disadvantaged spouse who is incapable of adequate rehabilitation or self support.
The trial court's authority to award post-minority support is limited and must be based upon a full consideration of the relevant factors.
Fisher v. American Family Mutual Ins. Co. , 1998 ND 109, 579 N.W.2d 599
Coverage for damage to the flooring in a home arising out of the insured floor finisher's operations was not excluded by exclusions b or j in the insured's commercial general liability policy.
Exclusions k and l excluded from coverage the cost of the finish and the sanding and finishing work performed by the insured on the homeowner's flooring.
When an insured has been abandoned by its insurer and enters into a Miller-Shugart settlement agreement, a failure to delineate between covered and non-covered damages does not render the Miller-Shugart agreement totally unenforce