Dale V. Sandstrom, Justice

Coughlin Construction v. Nu-Tec Industries , 2008 ND 163,
Objections to damages must be raised in the district court to preserve those issues for appellate review.
Whether a party has made a good-faith effort to mitigate damages is a finding of fact that will be set aside on appeal only if it is clearly erroneous.
Although the officers and directors of a corporation generally are not liable for the ordinary debts of a corporation, the corporate veil may be pierced when the legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime.
Hutchinson v. Boyle , 2008 ND 150, 753 N.W.2d 881
Disorderly conduct does not include constitutionally protected activity.
A district court must address a respondent's constitutional claims before issuing a disorderly conduct restraining order.
State v. Blunt , 2008 ND 135, 751 N.W.2d 692
Personal benefit to the defendant is not an element of the crime of misapplication of entrusted property.
At a preliminary hearing in a criminal case, the State is not required to prove with absolute certainty or beyond a reasonable doubt that a crime occurred, but need only produce sufficient evidence to establish probable cause that a crime occurred and that the defendant committed it.
The district court may consider credibility of witnesses at a preliminary hearing only when, as a matter of law, the testimony is implausible or incredible. When there is a mere conflict in the testimony, a question of fact exists for the jury, and the judge must draw the inference favorable to the prosecution.
A "bonus" is a premium paid in addition to what is due or expected, or a payment in addition to or in excess of the compensation that would ordinarily be given.
Sambursky v. State , 2008 ND 133, 751 N.W.2d 247
A defendant claiming ineffective assistance of counsel has a heavy burden of proving (1) counsel's representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel's deficient performance.
Whether a petitioner received ineffective assistance of counsel is a mixed question of law and fact and is fully reviewable on appeal.
Barros v. ND Dept. of Transportation , 2008 ND 132, 751 N.W.2d 261
The Department of Transportation is not required to call all persons who have handled a blood sample to establish a chain of custody for the sample. To establish chain of custody and introduce the results of a blood test, the Department's must show that the sample tested is the same one originally drawn from the defendant.
Baukol Builders v. County of Grand Forks , 2008 ND 116, 751 N.W.2d 191
A party cannot seek the benefits of a transaction under the law and thereafter challenge the validity of the transaction.
A governing body has some discretion to award a public improvement construction contract to the lowest responsible bidder.
In assessing the lowest responsible bidder, a governing body may consider the prospective bidder's ability, capacity, reputation, experience, and efficiency.
Absent statutory or contractual authority, each party to a lawsuit bears its own attorney fees.
Olson v. State , 2008 ND 113, 750 N.W.2d 459
A petitioner seeking post-conviction relief through DNA testing of evidence must present a prima facie case showing the evidence to be tested has been subject to a sufficient chain of custody.
To establish a prima facie case, the petitioner must present testimony or otherwise show that evidence still exists and has not been substituted, tampered with, replaced, or altered in any material respect.
State v. Nastrom , 2008 ND 110, 750 N.W.2d 432
Under three-year statute of limitations for felony prosecution, willful failure to pay child support is committed when there is a failure to pay child support, which includes arrearages, in an amount ordered by a court or other governmental agency having authority to issue orders.
Ike v. Director, ND Dept. of Transportation , 2008 ND 85, 748 N.W.2d 692
The issuance of a temporary operator's permit to a driver having an alcohol concentration exceeding the per se limit is a basic and mandatory requirement under N.D.C.C. 39-20-03.1. The issuance of the permit serves as the Department's official notification to the driver of the Department's intent to revoke, suspend, or deny driving privileges.
An officer's error as to a provision that is not basic and mandatory to the Department's authority to proceed is not reversible when there is no prejudice.
Waldie v. Waldie , 2008 ND 97, 748 N.W.2d 683
A district court's decision regarding redistribution of marital property and debt is reviewed under an abuse-of-discretion standard.
A redistribution of marital property and debt is warranted when there is a noncompliance with a court order that results in a significant shift in equity.
Ward v. Bullis , 2008 ND 80, 748 N.W.2d 397
An attorney may be liable for securities law violations if he is an agent who effects or attempts to effect the purchase or sale of securities, and he aids or participates in any way in the sale or contract for sale made in violation of the Securities Act.
Summary judgment is appropriate when either party is entitled to judgment as a matter of law and no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or resolving the factual disputes would not alter the result.
Sandvick v. LaCrosse , 2008 ND 77, 747 N.W.2d 519
The crucial elements of a partnership are (1) an intention to be partners, (2) co-ownership of the business, and (3) a profit motive.
For a business enterprise to constitute a joint venture, the following four elements must be present: (1) contribution by the parties of money, property, time, or skill in some common undertaking, but the contributions need not be equal or of the same nature; (2) a proprietary interest and right of mutual control over the engaged property; (3) an express or implied agreement for the sharing of profits, and usually, but not necessarily, of losses; and (4) an express or implied contract showing a joint venture was formed. There is, however, no fixed formula for identifying the joint venture relationship in all cases, and each case will depend upon its own unique facts.
Principles of partnership law apply to the joint venture relationship.
Joint venturers, like copartners, owe to one another, while the enterprise continues, the duty of the finest loyalty.
State v. Hidanovic , 2008 ND 66, 747 N.W.2d 463
In considering whether to grant a new trial on the ground of juror misconduct, a district court must decide whether there was misconduct and, if so, whether the misconduct could have affected the verdict of a hypothetical average juror.
A juror generally may not testify about matters or statements occurring during the course of the jury's deliberations, but may testify regarding the receipt of extraneous prejudicial information or improper outside influence.
If evidence of possible extraneous prejudicial information or outside influence is discovered, the proper procedure is to cease investigation to reduce the possibility of juror taint from extrajudicial pressures and to notify the court so it can conduct appropriate questioning.
The rule excluding juror testimony about statements during deliberations does not preclude evidence to show a juror lied during voir dire.
To prevail on a motion for new trial on the ground of newly discovered evidence, a defendant must show the evidence was discovered after trial, the failure to learn about the evidence at the time of trial was not the result of the defendant's lack of diligence, the newly discovered evidence is material to issues at trial, and the weight and quality of the newly discovered evidence would likely result in an acquittal.
In ruling on the relevancy of evidence, a district court has broad discretion to balance the probative value of the evidence against the risk of unfair prejudice.
Determining the admissibility of an out-of-court photographic identification of a defendant involves a two-step inquiry to determine whether the photographic identification procedure was suggestive, and whether the identification was, under the totality of the circumstances, reliable.
Bateman v. City of Grand Forks , 2008 ND 72, 747 N.W.2d 117
A court's review of special assessments for local improvements is limited to assuring that local taxing authorities do not act arbitrarily, capriciously, or unreasonably.
Special assessments for local improvements are presumed valid, and the burden is on the party challenging the validity to demonstrate they are invalid.
A special assessment against any property must not exceed the benefit the property receives from the improvement.
A special assessment commission has broad discretion to choose the method used to decide benefits and assess individual properties.
Sauby v. City of Fargo , 2008 ND 60, 747 N.W.2d 65
A home rule city may not impose fees for noncriminal traffic offenses that exceed the limits set forth for equivalent violations under state law.
General language in judicial opinions must be read in the context of the issues before a court.
A court will not follow opinions of the Attorney General if they are inconsistent with the statutory interpretation that the court deems reasonable.
State v. Brockel , 2008 ND 50, 746 N.W.2d 423
An officer can order a driver to sit in the patrol car when the officer issues a citation.
To justify a pat-down search, an officer must have a reasonable suspicion the person is armed and dangerous, or the person consented to the search.
Frueh v. Frueh , 2008 ND 26, 745 N.W.2d 362
In considering whether the moving party has established a prima facie case warranting an evidentiary hearing on a motion to change custody, a district court may not weigh conflicting issues of fact raised in the parties' affidavits.
On appeal, the denial of an evidentiary hearing on a motion to change custody is reviewed under an abuse-of-discretion standard.
State v. Desjarlais , 2008 ND 13, 744 N.W.2d 529
There is no obvious error under N.D.R.Crim.P. 52(b) unless there is a clear deviation from a clearly established rule of law.
Overland v. Overland , 2008 ND 6, 744 N.W.2d 67
A district court's division of property does not need to be equal to be equitable, but any substantial disparity must be explained.
When awarding spousal support, a district court must consider the relevant factors under the Ruff-Fischer guidelines. A court must also consider the needs of the spouse seeking support and of the supporting spouse's needs and ability to pay.
Leno v. Department of Transportation , 2008 ND 10, 743 N.W.2d 794
The Department is not required to show an Intoxilyzer machine has been recalibrated following a movement of the machine to prove an Intoxilyzer test was fairly administered.
An agency's decision will be affirmed if its findings of fact are supported by a preponderance of the evidence. When deciding whether a preponderance of the evidence supports an agency's findings, we do not re-weigh the evidence or substitute our judgment for that of the agency.
Manitoba Public Ins. Corp. v. Dakota Fire Ins. Co. , 2007 ND 206, 743 N.W.2d 788
A procedural remedy is not a vested right and is subject to repeal, modification, or change.
Christian v. Christian , 2007 ND 196, 742 N.W.2d 819
Permanent spousal support is appropriate when the economically disadvantaged spouse cannot be equitably rehabilitated to make up for the opportunities and development she lost during the course of the marriage.
When the parties to a divorce have reached an agreement on all matters pertaining to division of their property, there is no reason for the district court to hear evidence of the value of marital property.
In deciding whether to award attorney fees in a divorce action, the district court must balance one party's needs against the other party's ability to pay.
Submission of an affidavit to support an award of attorney fees is not necessary when the award is supported by testimony and other documentary evidence received in an evidentiary hearing.
Evidence that is discoverable before trial does not qualify as newly discovered evidence.
A property settlement agreement that is unconscionable may be set aside.
Intercept Corp. v. Calima Financial LLC , 2007 ND 180, 741 N.W.2d 209
The corporate veil of a limited liability company may be pierced if the same conditions and circumstances under which the corporate veil of a corporation may be pierced under North Dakota law are present.
A lack-of-personal-jurisdiction defense is waived if it is neither made by motion nor included in a responsive pleading.
State v. McAvoy , 2007 ND 178, 741 N.W.2d 198
Conditions of probation are interpreted as mandatory.
When a violation of probation is contested, the State needs to prove a probation violation by a preponderance of the evidence.
Bertsch v. Bertsch , 2007 ND 168, 740 N.W.2d 388
The law of the case doctrine applies only to issues decided by final judgments.
A district court has broad discretion regarding the scope of discovery.
A district court discovery order must be obeyed by the party to whom the order was issued. Failure to obey the order will result in a sanction, requiring the failing party to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified.
Interest of T. E. , 2007 ND 166, 740 N.W.2d 100
A State Hospital patient can be subject to more than one 90-day forced medication order.
The refusal-of-medication requirement of N.D.C.C. 25-03.1-18.1(1)(a)(2) can be met when a patient who is not literally refusing medication but is taking medication only because of a prior forced medication order indicates he would not take further medication unless ordered to do so by a court.
State v. Muhle , 2007 ND 131, 737 N.W.2d 636
A court's evaluation of the trustworthiness of a child's out-of-court statement about alleged sexual abuse, may include these non-exclusive factors: (1) the spontaneity and consistent repetition of the statements, (2) the mental state of the declarant, (3) the use of terminology unexpected of a child of similar age, and (4) a lack of motive to fabricate.
If a defendant has an opportunity to cross-examine a witness at trial, the admission of testimonial statements would not violate the Confrontation Clause.
The proper remedy for unfair surprise is a continuance, but one must be requested.
The term "statement," as used in N.D.R.Crim.P. 16(f), means a written or otherwise recorded statement made by the witness, codefendant, or other person.
J.P. v. Stark Co. Social Services , 2007 ND 140, 737 N.W.2d 627
When a medicaid recipient receives out-of-state medical care without prior approval when there is no emergency, payment may be covered only if there was good cause for not first securing approval, the care and services were not available in state, and the care and services were medically necessary.
Capital Electric Coop., Inc. v. City of Bismarck , 2007 ND 128, 736 N.W.2d 788
If a municipality has enacted an ordinance that requires electric suppliers to have a franchise, a rural electric cooperative must have a franchise to provide electric service within the municipality.
A franchise is a contract and is interpreted under rules for interpretation of a contract. Contracts are construed to give effect to the parties' mutual intention at the time of contracting, and the parties' practical interpretation of a franchise is entitled to some influence.
Home of Economy v. Burlington Northern , 2007 ND 127, 736 N.W.2d 780
North Dakota law does not preclude an action for a prescriptive easement for a public road across a railroad line.
A party asserting the existence of a public road by prescription has the burden of establishing by clear and convincing evidence the general, continuous, uninterrupted, and adverse use of a road by the public under a claim of right for 20 years.
Adverse and hostile use is ordinarily a question of fact.
Silbernagel v. Silbernagel , 2007 ND 124, 736 N.W.2d 441
Once a settlement agreement is merged into a judgment, the agreement is interpreted and enforced as a final judgment and not as a separate contract between the parties.
The parol evidence rule is a rule of substantive law and precludes the use of evidence of prior negotiations and agreements to vary or add to the terms expressed in the written contract.
A district court's findings should be stated with sufficient specificity to enable a reviewing court to understand the factual basis for the decision.
Whether to administer sanctions for noncompliance with the Rules of Appellate Procedure is discretionary with the Court.
State v. Gaede , 2007 ND 125, 736 N.W.2d 418
A defendant may not be convicted upon the testimony of an accomplice unless the accomplice's testimony is corroborated by other evidence tending to connect the defendant with the commission of the crime.
Testimony or argument about a defendant's post-arrest silence may constitute an improper comment about the defendant's invocation of the right to remain silent.
Evidence of prior bad acts or convictions is not admissible to prove a defendant's character in order to show action in conformity therewith, but may be admissible for other purposes, such as motive, intent, preparation, or plan.
Prior-bad-act evidence may be admissible to provide a more complete story of a crime by putting the crime in context of happenings near in time and place.
State v. Schweitzer , 2007 ND 122, 735 N.W.2d 873
For a statement to be admissible under the "excited utterance" exception to the hearsay rule, the proponent must show: (1) a startling event or condition; and (2) the statement is the product of the declarant's stress or excitement resulting from the startling event or condition.
Hearsay included within hearsay is not excluded as hearsay if each part of the combined statements falls within a hearsay exception.
A conviction will be reversed on the ground of insufficient evidence only if, after viewing the evidence and all reasonable inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.
A defendant claiming ineffective assistance of counsel has a heavy burden of proving: (1) counsel's representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by the counsel's deficient performance.
State v. Hahne , 2007 ND 116, 736 N.W.2d 483
A Fourth Amendment "seizure" occurs when a vehicle is stopped by police at a checkpoint. The basic question is whether the seizure is reasonable. If the seizure is reasonable, then it is constitutional.
Temporary law enforcement checkpoints or roadblocks established for particular public purposes are, in general, constitutional.
A court applies a three-part test to analyze the reasonableness of a law enforcement checkpoint: (1) a weighing of the gravity of the public concerns served by the seizure; (2) the degree to which the seizure advances the public interest; and (3) the severity of the interference with individual liberty.
Law enforcement checkpoints need not, as a matter of law, provide motorists with a way to avoid them. When considering the constitutional reasonableness of a checkpoint, avoidability is one factor that may be considered in evaluating the intrusion on the personal liberty of individual motorists.
Moore v. State , 2007 ND 96, 734 N.W.2d 336
Post-conviction relief may be granted when "[e]vidence, not previously presented and heard, exists requiring vacation of the conviction or sentence in the interest of justice."
When a defendant applies for post-conviction relief to withdraw a guilty plea, the application is treated as one made under N.D.R.Crim.P. 32(d), and withdrawal is allowed when necessary to correct a manifest injustice.
Scheer v. Altru Health System , 2007 ND 104, 734 N.W.2d 778
A dismissal without prejudice is ordinarily not appealable; however, a dismissal without prejudice may be final and appealable if the plaintiff cannot cure the defect that led to dismissal, or if the dismissal has the practical effect of terminating the litigation in the plaintiff's chosen forum.
North Dakota's medical malpractice law requires a plaintiff to serve the defendant with an admissible expert affidavit that supports a prima facie case of malpractice within three months of serving the summons.
The trial court may set a later date for serving the affidavit for good cause shown by the plaintiff.
The trial court must dismiss the case without prejudice, on motion by the defendant, for a plaintiff's failure to timely serve the affidavit or move for good cause.
A plaintiff may move for good cause as late as in response to the defendant's motion to dismiss.
Interest of D.C.S.H.C. , 2007 ND 102, 733 N.W.2d 902
The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.
A prisoner's due process rights are generally satisfied if the prisoner is represented at a parental-rights-termination hearing by counsel and has an opportunity to appear by deposition or other discovery technique.
In general, there is no denial of due process when the parent testifies at a termination hearing by telephone and is represented by court-appointed counsel during the proceeding.
A North Dakota district court does not have authority to order another state to allow a prisoner to appear in a civil case.
State ex rel. Stenehjem v. Philip Morris Inc. , 2007 ND 90, 732 N.W.2d 720
The de novo standard of review applies to an appeal from the denial of a motion to compel arbitration, unless the district court's decision was based on factual findings, in which case the clearly erroneous standard applies.
Use of the words, "including, without limitation," reflects a contrary intention that an enumeration is not exhaustive, rendering the doctrine of ejusdem generis inapplicable.
The plain and unambiguous language of the tobacco master settlement agreement requires arbitration of a dispute over application of the diligent enforcement exemption to the non-participating manufacturer adjustment.
State v. Dennis , 2007 ND 87, 733 N.W.2d 241
Consistent with the presumption that compliance with the constitutions of the state and of the United States is intended, criminal statutes are strictly construed in favor of the defendant and against the government.
When a form of conduct, the manner of its performance and operation, and the persons and things to which it refers are designated, there is an inference that all omissions should be understood as exclusions.
N.D.C.C. 19-03.1-23.1(1)(a) provides an offense enhancement only for the manufacture or distribution of a controlled substance within one thousand feet of a school.
Interest of D.M., a child , 2007 ND 62, 730 N.W.2d 604
A lower court's decision to terminate parental rights is a question of fact that will not be overturned unless the decision is clearly erroneous.
A finding that someone "has issues" or "struggled with issues" is meaningless as a matter of law.
When there has been an extensive period during which efforts have been made to overcome a parent's inabilities to effectively parent, the courts cannot allow the children to remain in this indeterminate status midway between foster care and the obvious need for permanent placement.
A history of alcohol and drug abuse combined with numerous failed attempts at controlling the addiction, together with evidence of a failure to fully cooperate with social service workers to receive the necessary treatment and services to become a fit parent, demonstrates a very poor prognosis for a parent's ability to provide minimally adequate care for a child.
When the mental and physical health of a child are the concerns, it is not enough that a parent indicate a desire to improve. A parent must be able to demonstrate present capability, or capability within the near future, to be an adequate parent.
Matter of Anderson , 2007 ND 50, 730 N.W.2d 570
The district court may extend for good cause the 60-day period within which a commitment hearing must be held.
For the civil commitment proceedings under N.D.C.C. ch. 25-03.3, the legislature specifically excluded the right to a jury trial.
Involuntary civil commitment of a sexually dangerous person is reviewed under a modified clearly erroneous standard of review.
Sexually predatory conduct includes the act of compelling another to submit to sexual contact by force. It also includes sexual contact with a minor when the actor is an adult.
A person need not be diagnosed with a sexual disorder. The actor need only have a congenital or acquired condition that is manifested by a personality disorder or other mental disorder or dysfunction.
Under the statute for committing a sexually dangerous person, proof of a nexus between the requisite disorder and dangerousness encompasses proof that the disorder involves serious difficulty in controlling behavior and suffices to distinguish a dangerous sexual offender whose disorder subjects him to civil commitment from the dangerous but typical recidivist in a criminal case.
City of Belfield v. Kilkenny , 2007 ND 44, 729 N.W.2d 120
All laws must meet two requirements to survive a void-for-vagueness challenge: the law must create minimum guidelines for the reasonable police officer, judge, or jury charged with enforcement of the statute; and the law must provide a reasonable person with adequate and fair warning of the proscribed conduct.
State v. Frohlich , 2007 ND 45, 729 N.W.2d 148
Motions for continuance will be granted only for good cause shown, either by affidavit or otherwise.
The denial of a continuance will be reversed only if it is an abuse of discretion.
When a continuance is sought to retain or replace counsel, the right to select counsel must be carefully balanced against the public's interest in the orderly administration of justice. In exercising its discretion, the district court may consider the time required for trial preparation and the diligence of the moving party.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or needless presentation of cumulative evidence.
Cumulative evidence is additional evidence of the same character as existing evidence and that supports a fact established by the existing evidence.
State v. Mulske , 2007 ND 43, 729 N.W.2d 129
If an accused desires to exercise his constitutional right to testify, the accused must act affirmatively and express to the court his desire to do so at the appropriate time or a knowing and voluntary waiver of the right is deemed to have occurred.
Unlike other constitutional rights that can be waived only after the court makes a formal inquiry, the court does not have a duty to verify that the defendant who is not testifying has waived his or her right voluntarily. Instead, the court is entitled to presume the attorney and the client discussed the right, and the defendant voluntarily agreed upon the final decision.
State v. Austin , 2007 ND 30, 727 N.W.2d 790
Expert testimony is admissible when specialized knowledge will assist the trier of fact in understanding the evidence or determining a fact in issue. Whether expert testimony is useful falls within the district court's discretion, and the decision whether to allow the testimony will not be reversed on appeal unless the district court has abused its discretion.
A defendant claiming ineffective assistance of counsel must prove that the counsel's representation fell below an objective standard of reasonableness and that the defendant was prejudiced by counsel's deficient performance.
Stockman Bank of Montana v. AGSCO, Inc. , 2007 ND 27, 727 N.W.2d 742
An agricultural supplier's lien is a statutory lien and cannot be obtained or enforced unless there is substantial compliance with the statute.
The producer's actual knowledge is substantial compliance with requirement for notice to the producer before filing the lien.
State v. Streeper , 2007 ND 25, 727 N.W.2d 759
When a person puts another in danger, such as by unlawfully injecting her with drugs, and then does nothing to aid her in the resulting medical crisis, the failure to take appropriate action may be considered as a continuation of criminal conduct.
The use and admission of photographs in criminal trials is largely within the discretion of the district court.
A statement of a criminal defendant is admissible even though the defendant intended it to be exculpatory when made.
In controlling the scope of closing argument, the district court is vested with discretion, and absent a clear showing of an abuse of discretion, the conviction will not be reversed on grounds the prosecutor exceeded the scope of permissible closing argument.
State v. Duchene , 2007 ND 31, 727 N.W.2d 769
Issues not briefed by an appellant are abandoned, and become the law of the case and will not be considered on appeal.
B.J. Kadrmas, Inc. v. Oxbow Energy , 2007 ND 12, 727 N.W.2d 270
The existence of a contract is a question of fact for the trier of fact, and appellate review is governed by the "clearly erroneous" standard.
In a bench trial, the court determines credibility, which is not second-guessed on appeal. The trial court's choice between two permissible views of the evidence is not clearly erroneous.
A contract is either express or implied. An express contract is one the terms of which are stated in words. An implied contract is one the existence and terms of which are manifested by conduct.
Under contracts implied in fact, the court merely attempts to determine from the surrounding circumstances what the parties actually intended.
When the parties have agreed on the essential terms of a contract, the fact they contemplated a further writing memorializing the agreement does not prevent enforcement of the contract. The intent of the parties controls, and a binding agreement is created unless the parties intended there be no agreement until a writing was signed.
When the relations between parties justify the offerer expecting a reply, or when the offeree has come under a duty to communicate either a rejection or acceptance, the failure to communicate rejection or to perform this duty may result in a legal assent to the terms of the offer.
State v. Stensaker , 2007 ND 6, 725 N.W.2d 883
On appeal, jury instructions are fully reviewable.
Jury instructions are reviewed as a whole and must correctly and adequately inform the jury of the applicable law even though part of the instructions when standing alone may be insufficient or misleading.
The intentional gathering and preparation of ingredients, whose purchase, possession, or transportation is regulated by state law, with the intent to manufacture methamphetamine provides sufficient evidence for criminal attempt to manufacture methamphetamine.
State v. Wardner , 2006 ND 256, 725 N.W.2d 215
A presentence investigation must be conducted before sentencing for gross sexual imposition, but an additional presentence investigation is not required for imposition of a previously suspended sentence after revocation of probation.
Conditions of probation are interpreted as mandatory.
Harshberger v. Harshberger , 2006 ND 245, 724 N.W.2d 148
The Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") establishes the criteria for deciding which state's courts have subject matter jurisdiction to make a child custody decisions involving interstate custody disputes, and subject matter jurisdiction under the UCCJEA cannot be conferred by agreement, consent, or waiver.
The UCCJEA applies to paternity actions only when custody or visitation is an issue.
A subsequent motion in a pending paternity action that implicates the jurisdictional requirements of the UCCJEA does not relate back to the beginning of the original paternity action that did not raise custody or visitation as an issue.
A judgment entered without subject matter jurisdiction is void.
Klein v. Larson , 2006 ND 236, 724 N.W.2d 565
In an initial custody decision, the trial court must award custody to the parent who will better promote the best interests and welfare of the child.
A parent's numerous prior criminal offenses, although not involving crimes of moral turpitude, are relevant evidence of the parent's moral fitness.
Eifert v. Eifert , 2006 ND 240, 724 N.W.2d 109
In deciding custody, a district court may consider the child's interaction and interrelationships with a party's extended family and others who may significantly affect the child's best interests.
State v. Jacob , 2006 ND 246, 724 N.W.2d 118
For negligent homicide, a person must act negligently, causing death. For leaving the scene involving death, a person need only negligently leave an accident scene and fail to render aid where a death occurred.
It is legally and factually possible for a jury to find a person not guilty beyond a reasonable doubt of negligent homicide and guilty beyond a reasonable doubt of leaving the scene of an accident involving death.
Dunnuck v. Dunnuck , 2006 ND 247, 724 N.W.2d 124
An order denying a motion to modify child support that is intended to be the final order of the court is appealable.
The party requesting a change in child support must show a material change of circumstances if the motion to amend is brought within one year of the entry of the order sought to be amended.
A district court's decision not to modify a child support obligation because there has been no material change in circumstances is a finding of fact that will not be reversed unless it is clearly erroneous.
Tverberg v. Workforce Safety & Insurance , 2006 ND 229, 723 N.W.2d 676
The rehabilitation provisions of workers compensation law are intended to return injured workers to substantial gainful employment with a minium of retraining as soon as possible after a work injury, but those provisions do not require complete rehabilitation to preinjury earning capacity.
Section 65-05.1-01(6), N.D.C.C., applies if a vocational consultant determines that none of the priority options under N.D.C.C. 65-05.1-01(4) are viable and will not return the employee to the lesser of two-thirds of the average weekly wage or ninety percent of the employee's preinjury earnings.
Partial disability benefits are to be awarded based on a calculation for retained earnings capacity, and WSI may use a statewide job pool to calculate the employee's retained earnings capacity.
Eichhorn v. The Waldo Township Bd. of Supervisors , 2006 ND 214, 723 N.W.2d 112
Intervention is appropriate when the intervenor claims an interest relating to the property or transaction that is the subject of the action and that the disposition of the action may as a practical matter impair or impede the intervenor's ability to protect that interest, unless the interest is adequately represented by existing parties.
A party seeking a writ of mandamus must show that there is a "clear legal right" to performance of the particular act sought to be compelled by the writ and that there is no other plain, speedy, and adequate remedy in the ordinary course of law.
North Dakota statutes envision cooperation between townships and water resource district boards.
Livinggood v. Balsdon , 2006 ND 215, 722 N.W.2d 716
On remand, a district court may, unless otherwise specified, make its decision on the basis of the evidence already before it or may take additional evidence. The decision on taking additional evidence will be reversed only if the district court abuses its discretion.
Forcible ejectment or exclusion from real property is a conclusion of law fully reviewable on appeal.
Forcible ejectment from real property does not require the actual application of physical force; rather, it is enough if it is present and threatened, and is justly to be feared. This standard requires only that the plaintiff had reason to believe that he would be put out by the application of physical force if he did not obey.
The appropriate standard of review in an appeal challenging a district court's award of damages in a bench trial is whether the district court's findings of fact on damages are clearly erroneous.
A district court must award treble damages if it concludes that one person forcibly ejected or excluded another from real property.
State v. Graf , 2006 ND 196, 721 N.W.2d 381
Warrantless searches inside an individual's home are presumptively unreasonable, but searches inside an individual's home are not unreasonable if the search falls under one of the well-delineated exceptions to the warrant requirement.
Consent to search is an exception to the warrant requirement.
Consent to search purges the taint of prior unlawful police activity if the consent was voluntary under the totality of the circumstances and if the taint of the prior unlawful activity is purged, considering the temporal proximity between the illegal search and the consent, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct.
Consultation with an attorney may purge the taint of prior unlawful police activity.
Tibert v. City of Minto , 2006 ND 189, 720 N.W.2d 921
A decision of a local governing body will be affirmed on appeal unless the local governing body acted arbitrarily, capriciously, or unreasonably, or there is not substantial evidence to support the decision.
Heng v. Rotech Medical Corp. , 2006 ND 176, 720 N.W.2d 54
Issues cannot be raised for the first time on appeal.
Whether an employee has established a prima facie case of retaliatory discharge is a question of law fully reviewable on appeal.
An employer's failure to follow its own policies may support an inference of pretext, but not when the departure in policy is applied to all employees.
The admission of deposition testimony under N.D.R.Civ.P. 32(a) lies within the district court's discretion.
A comparison of hours and rates charged by opposing counsel is probative of the reasonableness of a request for attorney fees by prevailing counsel.
Mediation fees may not be awarded as an allowable cost if the parties have contractually agreed to share those expenses.
Electronic legal research fees are a component of attorney fees and cannot be separately taxed as costs.
State ex rel. Bd. of University and School Lands v. Alexander , 2006 ND 144, 718 N.W.2d 2
The parties to a prior foreclosure action and their assigns are bound by a judgment in the prior action under principles of res judicata.
The Pembina Nation Little Shell Band of North America is not a federally recognized Indian tribe.
Interest of J.S. , 2006 ND 143, 717 N.W.2d 598
Mentally ill persons who require treatment are entitled to the least restrictive treatment that will meet their treatment needs.
When deciding whether alternative treatment to hospitalization is adequate, the district court is required to make a two-part inquiry: (1) whether a treatment program other than hospitalization is adequate to meet the individual's treatment needs; and (2) whether an alternative treatment program is sufficient to prevent harm or injuries that an individual may inflict on himself or others.
When available alternative treatment programs are insufficient to prevent harm or injures that an individual may inflict on himself or others, less restrictive treatment cannot be ordered.
Ballensky v. Flattum-Riemers , 2006 ND 127, 716 N.W.2d 110
A defendant's demand to file a complaint is personal to the demanding defendant, and a plaintiff's failure to file the complaint after a demand does not void the service of the summons as to other defendants.
The amount of damages is a question of fact, and a victim need not establish economic damages before noneconomic damages can be awarded.
A physician is immune from liability for making a good faith report that the physician treated a person for an injury sustained in a motor vehicle accident if the physician has reasonable cause to suspect the injury was inflicted in violation of any criminal law, including driving under the influence of illegal drugs.
State v. Manning , 2006 ND 125, 716 N.W.2d 466
Relevant evidence is evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Interest of E.G. , 2006 ND 126, 716 N.W.2d 469
To terminate parental rights, the petitioner must prove three elements by clear and convincing evidence: (1) the child is a deprived child, (2) the conditions and causes of the deprivation are likely to continue or will not be remedied, and (3) that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.
To prove deprivation is likely to continue or will not be remedied, the petitioner cannot rely on past deprivation alone, but must provide prognostic evidence, demonstrating the deprivation will continue.
Kostelecky v. Kostelecky , 2006 ND 120, 714 N.W.2d 845
Property division and spousal support are interrelated and intertwined and often must be considered together. In making a spousal support determination, the district court must consider the relevant factors under the Ruff-Fischer guidelines.
Rehabilitative spousal support is awarded to equalize the burdens of divorce or to restore an economically disadvantaged spouse to independent status by providing an opportunity for a disadvantaged spouse to seek education, training, or experience that will enable the spouse to become self-supporting.
Haugen v. BioLife Plasma Services , 2006 ND 117, 714 N.W.2d 841
The doctrine of res ipsa loquitur allows a fact finder to infer negligence if the plaintiff can establish three foundational elements: (1) the accident was one that does not ordinarily occur in the absence of negligence; (2) the instrumentality or agent that caused the plaintiff's injury was in the exclusive control of the defendant; and (3) there was no voluntary action or contribution on the part of the plaintiff.
When a plaintiff can present specific evidence of negligence and the cause of an accident, the plaintiff has no need to rely on a res ipsa loquitur inference.
Roth v. Hoffer , 2006 ND 119, 715 N.W.2d 149
A district court may correct clerical errors after an appellate court has decided an appeal if the correction is the type envisioned by N.D.R.Civ.P. 60(a) and the appellate court has not ruled explicitly or implicitly on the issue that is the subject of the correction.
A correctable clerical mistake may be made by a party.
University Hotel Development v. Dusterhoft Oil, Inc. , 2006 ND 121, 715 N.W.2d 153
Before promissory estoppel may be invoked to enforce an agreement or to award damages, the terms of the promise must be clear, definite, and unambiguous.
Johnson v. State , 2006 ND 122, 714 N.W.2d 832
The affirmative defense of laches is proper in post-conviction proceedings.
For the affirmative defense of laches to prevail, the State must prove, by a preponderance of the evidence, that (1) the petitioner has unreasonably delayed in seeking relief, and that (2) the delay has prejudiced the State.
Landers v. Biwer , 2006 ND 109, 714 N.W.2d 476
Specific performance cannot be enforced against a party to a contract if specific performance is not just and reasonable to that party or if the party's assent was obtained by misrepresentation.
Because specific performance is an equitable remedy, a litigant seeking specific performance is held to a higher standard than one merely seeking money damages, and to receive equity a litigant must "do equity" and must not come into court with "unclean hands."
All the circumstances surrounding a transaction may be considered when deciding whether specific performance is just and reasonable to a party.
An award of damages will not be disturbed if the award is within the range of the evidence presented to the trier of fact.
For disputes involving oral contracts, the trier of fact determines whether an oral contract exists and what the terms of the oral contract are, and the findings of fact of the district court will not be reversed unless they are clearly erroneous.
State v. Grager , 2006 ND 102, 713 N.W.2d 531
A prosecutor does not have the right to appeal an order dismissing a case when the proseuctor requested the dismissal.
The prosecution may not appeal an order suppressing evidence after the case has been dismissed at its request.
Knutson v. City of Fargo , 2006 ND 97, 714 N.W.2d 44
Under the North Dakota Constitution, inverse condemnation requires a public entity's taking or damaging an owner's property by some deliberate act, whether done intentionally, negligently, or innocently.
For intentional trespass, the plaintiff must establish the defendant intentionally entered the land of another, or caused a thing or third person to do so, without the consent of the landowner.
Public entities are not liable in negligence for discretionary functions or duties.
To decide whether a governmental act is protected by discretionary immunity, the court must examine whether the action is a matter of choice for the acting employee and whether that judgment or choice is of the kind that discretionary immunity was designed to shield.
Interest of K.L. , 2006 ND 103, 713 N.W.2d 537
Mentally ill persons who require treatment are entitled to the least restrictive treatment that will meet their treatment needs.
When deciding whether alternative treatment to hospitalization is adequate, the district court is required to make a two-part inquiry: (1) whether a treatment program other than hospitalization is adequate to meet the individual's treatment needs, and (2) whether an alternative treatment program is sufficient to prevent harm or injuries that an individual may inflict on himself or others.
While family involvement may be crucial in the recovery of mentally ill persons, it alone cannot defeat a district court finding that a person is dangerous and requires hospitalization if the record supports that finding.
Steen and Berg Co. v. Berg , 2006 ND 86, 713 N.W.2d 87
A primary objective of a nonclaim statute is the expeditious and orderly processing of decedents' estates, and if claims against a decedent's estate are not timely filed, the claims are barred as a matter of law.
Casting a claim in terms of title to property is insufficient to avoid the time limitations of the nonclaim statute if the gist of the claim sounds in tort or in contract.
Choice Financial Group v. Schellpfeffer , 2006 ND 87, 712 N.W.2d 855
Summary judgment is appropriate only after the non-moving party has had a reasonable opportunity for discovery to develop his position.
Failure to comply with the affidavit requirement of Rule 56(f), N.D.R.Civ.P., is not fatal to a request for additional discovery before a summary judgment motion is decided.
The party seeking additional discovery must identify with specificity what information is sought; how, if uncovered, it would preclude summary judgment; and why it has not previously been obtained.
Matter of G.R.H. , 2006 ND 56, 711 N.W.2d 587
Involuntary civil commitment of a sexually dangerous person is reviewed under modified clearly erroneous standard of review.
Under statute for committing sexually dangerous person, proof of nexus between the requisite disorder and dangerousness encompasses proof that the disorder involves serious difficulty in controlling behavior and suffices to distinguish a dangerous sexual offender whose disorder subjects him to civil commitment from the dangerous but typical recidivist in a criminal case.
The executive director of the Department of Human Services may decide the least restrictive available treatment for a sexually dangerous individual, and that procedure does not violate due process or double jeopardy.
Manning v. Manning , 2006 ND 67, 711 N.W.2d 149
The three-day extension under N.D.R.App.P. 26(c) for filing a notice of appeal does not apply when the extension is sought to be used by the party who served notice of entry of the judgment or order.
The district court decides credibility in a bench trial.
A guardian ad litem, as an advocate for the children, may give a custody recommendation.
A court may impose reasonable restrictions on the length of a hearing and the number of witnesses allowed.
Beckler v. Bismarck Public School Dist. , 2006 ND 58, 711 N.W.2d 172
The party resisting summary judgment cannot merely rely on pleadings, briefs, unsupported and conclusory allegations, or speculation to defeat a summary judgment motion but must present enough evidence for a reasonable jury to find for the plaintiff.
To succeed in a negligence claim, the plaintiff must prove the defendant owed a duty to the plaintiff, the defendant failed to discharge that duty, and the plaintiff has suffered an injury that was proximately caused by the defendant's negligence.
A landowner owes a duty of care to lawful entrants to keep its property in a reasonably safe condition, considering all the circumstances, which include the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk.
A proximate cause is a cause which, as a natural and continuous sequence, unbroken by any controlling intervening cause, produces the injury, and without which it would not have occurred.
Rothberg v. Rothberg , 2006 ND 65, 711 N.W.2d 219
An order denying a motion to modify child support or spousal support that is intended to be the final order of the court is appealable.
Conclusory, general findings of fact do not comply with N.D.R.Civ.P. 52(a), and the trial court must specifically state the subordinate facts upon which its ultimate factual conclusions rest.
In deciding whether to award attorney fees in a divorce proceeding, the court must consider the parties' financial needs and ability to pay.
Kramer v. Kramer , 2006 ND 64, 711 N.W.2d 164
A district court should ordinarily not order a distribution of marital property that is inconsistent with the parties' contract, but a court may set aside a property settlement agreement if the agreement is executed under mistake, duress, menace, fraud, or undue influence, or if the agreement is unconscionable.
State v. Moran , 2006 ND 62, 711 N.W.2d 915
Four factors must be weighted to decide whether a defendant's right to a speedy trial has been violated: (1) the length of the delay, (2) the reason for the delay, (3) the accused's assertion of his right to a speedy trial, and (4) the prejudice to the accused.
The State must actively try to serve a warrant, or it risks being negligent for not diligently pursuing the accused.
When the State diligently pursues the defendant, the defendant must prove actual prejudice; when the State intentionally delays prosecution because of a bad-faith motive, prejudice is presumed; and when the State has been negligent by not diligently pursuing the defendant, the weight of the other factors and the length of the delay controls whether prejudice must be actual or may be presumed.
The State does not err in its closing argument when it does not refer to its burden of proof so long as it does not imply a lesser burden of proof.
State v. Stavig , 2006 ND 63, 711 N.W.2d 183
Probation and restitution in a felony case may be extended for only one additional period of probation, not to exceed five years.
Ona revocation of probation appeal: (1) the Court reviews under a clearly erroneous standard whether the defendant violated his or her probation; and (2) the Court reviews under an abuse of discretion standard whether the district court's revoking the defendant's probation.
State v. Bergstrom , 2006 ND 45, 710 N.W.2d 407
In a civil forfeiture action, the State must show probable cause exists to bring the forfeiture action, and then the claimant must prove, by a preponderance of the evidence, the property is not subject to forfeiture.
Because forfeiture is a civil proceeding, apart from an underlying criminal proceeding, the burden of each party does not change when the defendant is acquitted of the criminal charge.
A district court may not rely on a prior probable cause determination, made when a search warrant was issued, to conclude there was probable cause to bring a civil forfeiture action.
Findings of fact are adequate if they provide this Court with an understanding of the district court's factual basis used in reaching its determination.
A court must balance four factors when deciding if a delay in bringing a forfeiture action has violated the claimant's due process rights: length of delay, the reason for the delay, the claimant's assertion of his right, and prejudice to the claimant.
Maynard v. McNett , 2006 ND 36, 710 N.W.2d 369
When divorced parents share custody, the designation of a single custodian is not required, each parent can be declared a custodian, and both parents have all the legal rights designated to a custodial parent.
A parent with joint legal and physical custody may not be granted permission to move with the divorced parents' child, unless the district court first determines the best interests of the child require a change in primary custody to that parent.
A parent with joint physical and legal custody who wishes to relocate with the child must make two motions before the parent may be given permission to relocate: one for a change of custody and one to relocate with the child.
When a parent with joint legal and physical custody moves for change of custody and permission to relocate, the statutory best-interests-of-the-child factors must be applied rather than the Stout-Hawkinson factors, because the Stout-Hawkinson factors were designed to address the best interests of the child when a primary custodian has already been designated.
Wheeler v. Gardner , 2006 ND 24, 708 N.W.2d 908
An inmate's responsibility for costs of a medical visit is not limited to a maximum of $10, but rather an inmate is responsible for the actual health care costs plus an additional $10 fee for each medical visit requested by the inmate.
An "after hours" fee billed by a dental office is a health care cost for which an inmate is liable.
Schwan v. Folden , 2006 ND 28, 708 N.W.2d 863
If a plaintiff does not move for default judgment after the default has occurred or within a reasonable time after the default, and the answer is subsequently filed, the plaintiff waives its right to default judgment for a defendant's failure to appear.
The strong preference of the courts is to decide cases on their merits rather than by default judgment.
A party who proceeds to trial rather than pursuing a default judgment waives its right to default judgment.
Only items in the record may be included in the appendix, and the Supreme Court may take appropriate action against any person failing comply with this rule.
Interest of M.B. , 2006 ND 19, 709 N.W.2d 11
To terminate parental rights, the petitioner must provide specific facts that will be relied on to terminate the parent's rights so the parent has notice and is able to meaningfully prepare a defense.
To terminate parental rights, the petitioner must prove three elements by clear and convincing evidence: (1) the child is a deprived child, (2) the conditions and causes of the deprivation are likely to continue or will not be remedied, and (3) that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.
To prove deprivation is likely to continue or will not be remedied, the petitioner cannot rely on past deprivation alone, but must provide prognostic evidence, demonstrating the deprivation will continue.
Perez v. Nichols , 2006 ND 20, 708 N.W.2d 884
To succeed in a negligence claim, the plaintiff must prove the defendant owed a duty to the plaintiff, the defendant failed to discharge that duty, and the plaintiff has suffered an injury that was proximately caused by the defendant's negligence.
The driver of an automobile has a duty to keep a proper lookout, and failure to discharge that duty is negligence.
In a negligence claim, when the evidence permits a reasonable fact-finder to reach only one reasonable conclusion, negligence becomes a question of law and is appropriate for summary judgment.
Simon v. Simon , 2006 ND 29, 709 N.W.2d 4
The offset provisions of the split custody and equal custody regulations of the child support guidelines continue to apply to the parents' child support obligations when one parent assigns the right to receive child support to the State as reimbursement for TANF benefits received.
Wright v. State , 2005 ND 217, 707 N.W.2d 242
A defendant alleging ineffective assistance of counsel must prove counsel's representation fell below an objective standard of reasonableness and the defendant was prejudiced by counsel's deficient performance.
To demonstrate prejudice resulting from counsel's deficient performance, a defendant must establish a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.
State v. Hernandez , 2005 ND 214, 707 N.W.2d 449
A trial court has broad discretion to determine whether a witness is qualified as an expert and whether the witness's testimony will assist the trier of fact.
A party's failure to object to evidence admitted at trial generally waives the party's right to complain on appeal about the admission of the evidence.
A trial court has discretion to decide whether a party has opened the door for the admission of otherwise inadmissible evidence.
A jury is generally presumed to follow a curative instruction, and a curative instruction to disregard certain evidence is generally sufficient to remove improper prejudice.
A trial court has broad discretion to balance the probative value of evidence against the risk of unfair prejudice.
To establish a due process violation for the destruction of evidence, a defendant must establish bad faith by the State, which means the evidence was deliberately destroyed by or at the direction of a State agent who intended to thwart and deprive the defense of the information.
Curtis Construction Co., Inc. v. American Steel Span, Inc. , 2005 ND 218, 707 N.W.2d 68
A complete written contract must contain all the essential or material conditions and terms of the contract.
A complete contract may be contained in several writings or documents as long as it identifies: (1) the contracting parties; (2) the subject matter; (3) the consideration; and (4) the terms and conditions upon which the contract was entered.
The trier of fact decides the terms of an oral contract.
A contractor who has substantially performed may recover the contract price, less the expense of repairing the defects or omissions. Defects claimed must be clearly ascertainable in both their nature and origin. The injured party must prove the cost of repair or the loss of value to its property.
Gray v. N.D. Game and Fish Dept. , 2005 ND 204, 706 N.W.2d 614
The laws of the states participating in the Interstate Wildlife Violator Compact need not be identical to support reciprocal enforcement of an out-of-state wildlife conviction in North Dakota.
A judgment rendered in violation of due process is void in the rendering state and is not entitled to full faith and credit elsewhere.
The Interstate Wildlife Violator Compact does not require congressional consent under the compact clause of the federal constitution.
A suspension of hunting privileges under the Interstate Wildlife Violator Compact is not double jeopardy.
The due process clause does not require presuspension notice and hearing before hunting privileges may be suspended under the Interstate Wildlife Violator Compact.
State v. Laib , 2005 ND 191, 705 N.W.2d 815
For the crime of terrorizing, the critical inquiry is whether the defendant intended to place others in fear for their safety.
For the crime of terrorizing, a threat does not have to be made verbally.
For the crime of terrorizing, a communication, either verbal or nonverbal, is sufficient to be a threat if a reasonable person could conclude that it was a threat under the circumstances.
Wetzel v. Schlenvogt , 2005 ND 190, 705 N.W.2d 836
A corporation may not be represented by a non-attorney agent in a legal proceeding.
When a case is commenced on behalf of a corporation by a non-attorney agent, the case and all documents signed by the non-attorney agent are void from the beginning.
Reasonable grounds exist for obtaining a disorderly conduct restraining order when the facts and circumstances presented to the judge are sufficient to warrant a person of reasonable caution to believe that acts constituting disorderly conduct have been committed.
A disorderly conduct restraining order does not require a pattern of behavior.
The district court does not abuse its discretion in granting a disorderly conduct restraining order when there is sufficient, admissible evidence that disorderly conduct has been committed, whether that evidence is received on direct examination or cross-examination.
Whenever there is a discrepancy between a trial court's oral and written statements, the written statement controls.
Bjerklie v. Workforce Safety and Insurance , 2005 ND 178, 704 N.W.2d 818
In an administrative appeal, only issues properly raised before the agency will be reviewed on appeal.
The Administrative Agencies Practice Act requires that alleged errors be specifically enumerated for the district court.
An administrative agency's decision will be summarily affirmed if the appellant fails to specifically identify any error with particularity.
A workers compensation claimant has good cause for not attending an independent medical examination if the claimant has a reason that would cause a reasonably prudent person to refuse to attend under the same or similar circumstances.
When a workers compensation claimant who has a reasonable opportunity to inform WSI that she cannot attend an independent medical examination fails to do so, the claimant's responsibility to cooperate with WSI has not been fulfilled, the claimant has not communicated properly with WSI, the claimant does not have good cause to not attend the IME, and the claimant has failed to comply with rehabilitation requirements.
Miller v. Diamond Resources, Inc. , 2005 ND 150, 703 N.W.2d 316
A proximate cause is a cause that, as a natural and continuous sequence unbroken by any controlling intervening cause, produces the injury, and without it the injury would not have occurred.
The intervening negligence of another cannot be a superseding cause that extinguishes a wrong-doer's liability if that negligence was a foreseeable consequence of the situation created by the wrong-doer.
Heart River Partners v. Goetzfried , 2005 ND 149, 703 N.W.2d 330
Parol evidence is admissible in an action to reform a written deed when, through fraud or mutual mistake of the parties, or a mistake by one party which the other at the time knew or suspected, the deed does not truly express the parties' intention.
Lagro v. Lagro , 2005 ND 151, 703 N.W.2d 322
An abuse-of-discretion standard is used to review a district court's denial of an evidentiary hearing on a change-of-custody motion.
A party seeking a change of custody must present prima facie evidence to warrant an evidentiary hearing. Prima facie evidence is admissible evidence that, if uncontradicted, would be sufficient to justify a judgment in the presenting party's favor. Affidavits must be competent in order to fulfill the legislative requirement of showing prima facie evidence before the moving party is entitled to an evidentiary hearing.
City of Bismarck v. Judkins , 2005 ND 143, 701 N.W.2d 911
A constitutional error may be declared harmless if the court, after reviewing the entire record, is convinced that the error did not contribute to the verdict.
Interest of B.J.K. , 2005 ND 138, 701 N.W.2d 924
A juvenile court's finding of deprivation will not be set aside unless it is clearly erroneous.
In determining whether the causes and conditions of deprivation will continue or will not be remedied, there must be prognostic evidence forming the basis for reasonable prediction of continued or future deprivation.
State v. Hatlewick , 2005 ND 125, 700 N.W.2d 717
A conviction is supported by sufficient evidence when a rational fact finder, viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, is able to determine from the evidence that a defendant is guilty beyond a reasonable doubt.
A trial court retains jurisdiction to issue a restitution order after a defendant has filed a notice of appeal from the criminal judgment.
Citibank v. Reikowski , 2005 ND 133, 699 N.W.2d 851
Before accepting and filing an answer, a clerk should require the filing fee be paid or waived, however, if the clerk does not do so, the filing of the answer is not invalidated.
Johnson v. Nodak Mutual Ins. Co. , 2005 ND 112, 699 N.W.2d 45
An insurer's payment for an insured's independent medical examination is not a no-fault benefit for purposes of a statute of limitations that requires actions for further benefits to begin no later than four years after the last payment of benefits.
A motion for relief from a judgment may not be used to provide a litigant with a second chance to present new legal theories to a court.
Tri-State Ins. Co. of Minnesota v. Commercial Group West , 2005 ND 114, 698 N.W.2d 483
Under a builder's risk insurance policy, a party not expressly named as a co-insured under the policy is protected from subrogation only to the extent that the insurance policy expressly covers the party's property.
Martin v. Stutsman Co. Social Services , 2005 ND 117, 698 N.W.2d 278
An administrative agency is bound by its own duly issued regulations. The agency, nevertheless, has a reasonable range of informed discretion in the interpretation and application of its own rules.
Courts generally defer to an agency's reasonable interpretation of its rule when the language is ambiguous or when the language is so technical that only a specialized agency has the experience and expertise to understand it.
Martin v. Berg , 2005 ND 108, 697 N.W.2d 723
On appeal from a summary judgment, the Supreme Court decides whether the information available to the trial court precluded the existence of a genuine issue of material fact and entitled the moving party to summary judgment as a matter of law.
Where the language of a will is clear and unambiguous, the testator's intent must be determined from the language of the will.
Estate of Kimbrell , 2005 ND 107, 697 N.W.2d 315
The surviving spouse of a decedent occupying real property as a homestead receives the right to possession, use, control, income, and rents of the property for life or until the surviving spouse again marries, limited in size and value to the land and the dwelling house, with all its appurtenances and other improvements, not to exceed $80,000 in value, over and above liens and encumbrances.
Klindt v. Pembina Co. Water Resource Bd. , 2005 ND 106, 697 N.W.2d 339
Landowners are not required to appeal a water resource board's determination of benefits of a project to the state engineer if the cost of the project is less than $100,000.
A water resource board may find that an entire watershed would be benefited by a snagging and clearing project.
All land that will be benefited by a water project should be assessed the cost of the project.
The participation of a water resource board member who should have been disqualified in establishing a project does not require nullification of the project unless his presence was necessary to constitute a quorum and his vote determined the result.
Successful litigants are not entitled to attorney fees unless authorized by contract or statute.
Woods v. Ryan , 2005 ND 92, 696 N.W.2d 508
In deciding whether to change custody of a child, a court must use a two-part analysis, considering first whether there has been a material change of circumstances, and then, if the court decides there has been, deciding whether a change in custody is necessary to serve the best interests of the child.
ND Human Rights Coalition v. Bertsch , 2005 ND 98, 697 N.W.2d 1
A trial court's decision to certify a class action will not be overturned on appeal unless the court abused its discretion.
A trial court's explanation of its decision to grant a class action certification must be sufficient to enable a reviewing court to understand the basis for the court's decision.
State v. Keller , 2005 ND 86, 695 N.W.2d 703
The right to a lesser-included-offense instruction requires that the offense be a lesser included offense of the greater, that the evidence be such that a jury could rationally find the defendant not guilty of the greater offense and guilty of the lesser, and generally, that the instruction be requested.
North Dakota's current lesser-included-offense law has its origin in the North Dakota Rules of Criminal Procedure, not N.D.C.C. 12.1-01-04(15).
For an offense to be a lesser included offense, it must be impossible to commit the greater offense without committing the lesser offense.
Criminal facilitation is not a lesser included offense of conspiracy to commit murder.
Criminal facilitation is not a lesser included offense of attempted murder.
Reckless endangerment is not a lesser included offense of attempted murder.
Sorlie v. Workforce Safety and Insurance , 2005 ND 83, 695 N.W.2d 453
The pretermination due process procedures for terminating disability benefits do not apply to a lump-sum award.
Claimants reapplying for disability benefits must show both a significant change in their medical condition and an actual wage loss caused by the significant change in their compensable medical condition.
Edinger v. Governing Authority of Stutsman Co. Correctional Center , 2005 ND 79, 695 N.W.2d 447
When the information available to a governing body suggests a reasonable probability of future litigation or adversarial administrative proceedings, the governing body may close a portion of a public meeting and meet in executive session to receive and discuss the advice of its attorney.
Hanson v. Hanson , 2005 ND 82, 695 N.W.2d 205
A district court may modify a prior custody order after a two-year period following the date of entry of an order establishing custody if the court finds that a material change in circumstances has occurred and that the modification is necessary to serve the best interest of the child. A party seeking to modify a custody order bears the burden of showing that a change of custody is required.
A district court must first calculate the presumptively correct child support amount before it can depart from the Child Support Guidelines.
Jorgensen v. ND Dept. of Transportation , 2005 ND 80, 695 N.W.2d 212
Inclusion of chemical test results in an officer's certified report to the Director of the North Dakota Department of Transportation under N.D.C.C. 39-20-03.1(3) is a basic and mandatory provision without which the department may not suspend a person's driving privileges.
State of ND v. NDSU , 2005 ND 75, 694 N.W.2d 225
For purposes of an insurance policy exclusion for surface water damage, surface water does not lose its character as surface water by being diverted underground through man-made structures.
The efficient proximate cause doctrine applies only where two or more independent forces operate to cause the loss.
The efficient proximate cause doctrine does not apply to a loss caused by a discernable cause even though the insured attempts to characterize the cause in various ways to create the appearance of multiple causes.
A covered peril that is merely a concurrent cause is insufficient to allow coverage under the efficient proximate cause doctrine.
Doll v. ND Department of Transportation , 2005 ND 62, 693 N.W.2d 627
Guidelines for use of a standard solution are not part of the approved method for conducting an Intoxilyzer test unless the State Toxicologist expressly includes them in the approved method filed with the clerk of district court.
Dvorak v. Dvorak , 2005 ND 66, 693 N.W.2d 646
Tax returns from the most recent five years are properly used to determine the self-employment income of an obligor in calculating child support obligations.
In awarding attorney's fees in a divorce action, a court should consider the property owned by each party, their relative incomes, whether property is liquid or fixed assets, and whether the action of either party has unreasonably increased the time spent on the case.
Larson v. Larson , 2005 ND 67, 694 N.W.2d 13
In construing a statute, courts are to ascertain the legislature's intent, which initially must be sought from the statutory language itself, giving it its plain, ordinary, and commonly understood meaning.
As amended, N.D. law does not allow a court to award post-minority child support for college expenses.
Makeeff v. City of Bismarck , 2005 ND 60, 693 N.W.2d 639
A landowner is not immune from liability for an accident that occurs on the landowner's premises just because the accident was caused by a natural accumulation of snow and ice.
Landowners or occupiers have a duty to lawful entrants to reasonably maintain their property in a reasonably safe condition, in view of all the circumstances, including the likelihood of injury to another, the seriousness of an injury, and the burden of avoiding the risk.
Landowners, however, are not insurers of their premises, nor must they endure unreasonable burdens to maintain it.
Kaiser v. State , 2005 ND 49, 693 N.W.2d 26
If, in responding to an application for post-conviction relief, the State moves for dismissal and presents matters outside the pleading and the court does not exclude them, the opposing party shall have 30 days after service of the State's brief within which to serve and file an answer brief and supporting papers.
Sweeney v. Sweeney , 2005 ND 47, 693 N.W.2d 29
In divorce proceedings, a trial court must award reasonable attorney fees and court costs to one parent if it finds the other parent has made an allegation of harm to the child that is false and not made in good faith or if the court finds there has been willful and persistent denial of the noncustodial parent's visitation rights by the custodial parent.
The court cannot, to avoid imposing a significant burden on the offending party or to avoid disrupting the parties' improved relationship, ignore its mandate to award reasonable attorney fees and costs when there has been willful and persistent denial of visitation rights.
Pratt v. Altendorf , 2005 ND 32, 692 N.W.2d 115
Dismissal of a civil action, without prejudice, is ordinarily not appealable, but it is considered final and appealable if it has the practical effect of terminating the litigation in the plaintiff's chosen forum.
The notice requirement, under N.D.C.C. 4-35-21.1(1), for civil actions arising out of the application of pesticide inflicting damage on property, does not apply to an action for breach of contract alleging the applicator did not provide services in a timely manner.
State v. Smith , 2005 ND 21, 691 N.W.2d 203
The information obtained by a police officer from an anonymous informant cannot alone establish probable cause if the tip provides virtually nothing from which a person might conclude the informant is honest or his information is reliable, or if the information gives absolutely no indication of the basis for identifying the criminal activities.
A police officer needs at least one reasonable and articulable factor to stop a seemingly innocent car.
Ziegler v. Dahl , 2005 ND 10, 691 N.W.2d 271
Even if a factual dispute exists, summary judgment is proper if the law is such that resolution of the factual dispute will not change the result.
The existence of a partnership is a mixed question of law and fact, and the ultimate determination of whether a partnership exists is a question of law.
For a partnership, the intent element focuses not on whether individuals subjectively intended to form a partnership, but on whether the individuals intended to jointly carry on a business for profit.
Under the co-ownership requirement for a partnership, a person does not need to actually control the business so long as the person has the right to exercise control in the management of the business.
Kiecker v. ND Dept. of Transportation , 2005 ND 23, 691 N.W.2d 266
The results of a blood-alcohol test must be received in evidence when it is shown that the sample was properly obtained and the test was fairy administered, and if the test is shown to have been performed according to methods and with devices approved by the State Toxicologist.
A document is not part of the approved method unless the State Toxicologist expressly includes it in the approved method and makes it a foundational requirement for fair administration.
The installation and repair checkout form is not part of the approved method.
Jones v. ND State Board of Medical Examiners , 2005 ND 22, 691 N.W.2d 251
A physician has no statutory or due process right to appear personally before the State Board of Medical Examiners when the Board deliberates whether to accept or reject an administrative law judge's recommendations.
The Board's conclusions of law and order must sufficiently explain its rationale for not adopting an administrative law judge's recommended sanction.
State v. Klindtworth , 2005 ND 18, 691 N.W.2d 284
A victim's alarm or fear is an element of disorderly conduct only if the defendant is charged with those parts of the statute that refer to it.
An objective standard is used to determine whether the person's conduct alarms another individual in a disorderly conduct charge. A court may consider past conduct in determining whether it was reasonable that the victim became alarmed by the defendant's conduct identified in the charge.
Bolinske v. Herd , 2004 ND 217, 689 N.W.2d 397
The unsolicited referral of an out-of-state lawyer by an in-state lawyer does not provide sufficient contacts to make the out-of-state lawyer amenable to suit in North Dakota. The mere representation of a resident client by a nonresident lawyer does not subject the nonresident lawyer to personal jurisdiction; more is required.
The contacts being used to acquire personal jurisdiction over a nonresident party must be directly related to the litigation.
Forster v. West Dakota Veterinary Clinic , 2004 ND 207, 689 N.W.2d 366
In a defamation action, the court determines whether a communication is capable of bearing particular meaning and whether that meaning is defamatory, and the jury determines whether a communication capable of a defamatory meaning was so understood by its recipient.
Direct evidence of the recipient's understanding of the defamatory nature of a libel is not required if other evidence is sufficient to permit an inference of that understanding.
When the circumstances of the occasion for a communication are not in dispute, the determination whether there is a qualified privilege is a question of law for the court, but the determination whether a qualified privilege has been abused is generally a question of fact.
Plaintiffs in a defamation action have a duty to mitigate damages.
Evidence of a plaintiff's general bad reputation or bad character is admissible in a defamation action only if it affects the aspects of reputation asserted to have been defamed.
While cumulative evidence may sometimes strengthen the weight and credibility of a witness's testimony, a district court does not necessarily abuse its discretion by excluding cumulative evidence.
Expert testimony is allowed if the witness is shown to have some degree of expertise in the field in which he is to testify.
Employment without a definite term is presumed to be at will, and an at-will employee may be terminated with or without cause.
A prior written agreement providing it can be modified only in writing does not prevent the parties from entering into a new oral agreement.
Jensen v. State , 2004 ND 200, 688 N.W.2d 374
In a post-conviction proceeding, a claim is res judicata if it was fully and finally determined in a previous proceeding.
A misuse of process occurs when the applicant presents a claim for relief that the applicant inexcusably failed to raise in prior proceedings, or if the applicant has filed multiple applications containing claims so lacking in factual support or legal basis as to be frivolous.
Schmidt v. Wittinger , 2004 ND 189, 687 N.W.2d 479
A trial court can order a partition of real property if a partition in kind cannot be made without great prejudice to the owners.
For the partition in kind of real property, great prejudice exists when the value of the share of each in case of a partition would be materially less than the share of the money equivalent that each could probably obtain from the whole.
A joint tenant must account to cotenants for receiving more than a proportionate share of the rents and profits.
A cotenant's failure to participate in the federal conservation reserve program is not a legal breach entitling the joint tenants to compensatory damages.
Estate of Gross v. ND Dept. of Human Services , 2004 ND 190, 687 N.W.2d 460
The monthly payments from a nonassignable annuity are a holder's interest in a contractual right to receive money payments and are an available asset under medicaid law.
There is a presumption that a holder's interest in a contractual right to receive money payments is saleable without working an undue hardship, and the presumption may be rebutted by evidence demonstrating the contractual right to receive money payments is not saleable without working an undue hardship.
Evenson v. Quantum Industries, Inc. , 2004 ND 178, 687 N.W.2d 241
The parol evidence rule precludes the use of evidence of prior oral negotiations and agreements to vary or add to the terms expressed in a written contract.
Preliminary oral statements and promises related to the terms of the contract do not provide the basis for a fraud claim if there is a subsequent written contract.
State v. Lee , 2004 ND 176, 687 N.W.2d 237
If a party does not object to an alleged error at the time it occurs, and does not give the court time to remedy any possible prejudice that may result, the party waives any ground of complaint against its admission upon appeal.
If a party does not object to an alleged error during trial, the party alleging an error has the burden of proving the alleged error was obvious by showing it is plain and it affects substantial rights of the party. The alleged error is not obvious unless it is a clear deviation from an applicable legal rule under current law.
State v. Mitzel , 2004 ND 157, 685 N.W.2d 120
The existence of consent and whether it is voluntary is a question of fact to be determined from the totality of the circumstances.
Consent cannot reasonably be implied from silence and failure to object.
Consent should not be lightly inferred, must be proven by clear and positive testimony, and must be unequivocal.
The government has the burden to prove that consent was voluntarily given.
The mere fact that a person has been arrested in violation of his constitutional rights casts grave doubt upon the voluntariness of a subsequent consent.
Miranda warnings are a factor to consider under the voluntariness test, but a Miranda warning cannot support voluntariness of consent when it is given after the consent.
Gonzalez v. Tounjian , 2004 ND 156, 684 N.W.2d 653
When a judgment is affirmed in part and reversed in part on appeal, post-judgment interest on the affirmed portion runs from the date of the original judgment.
State v. Stockert , 2004 ND 146, 684 N.W.2d 605
A judge is required to disqualify if the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceedings.
When personal knowledge about a matter has been obtained by a judge within another legal proceeding, disqualification is not called for.
When deciding whether or not to recuse, a judge must determine whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.
In deciding whether a judge should be disqualified because of a person's involvement in a judicial campaign, the relevant factors include: 1) the significance of the person's campaign involvement; 2) whether the campaign is under way or how recently it ended; 3) whether there is an ongoing relationship between the person and the judge; 4) the significance of the person's involvement in the current case, including the closeness or remoteness of the involved individual to the case; 5) whether the issue was promptly raised; and 6) evidence of judicial bias.
Adoption of S.R.F. , 2004 ND 150, 683 N.W.2d 913
De novo review under the Revised Uniform Adoption Act is abolished, and cases to the contrary are overruled.
A parent's abandonment of a child is a question of fact and may be inferred from circumstantial evidence of the parent's conduct.
Interest of T.T. , 2004 ND 138, 681 N.W.2d 779
Issues not raised in juvenile court may not be raised for the first time on appeal.
A deprivation hearing in juvenile court may not be combined with a hearing on divorce-related child custody and visitation issues.
A juvenile court's oral findings may be used to explain the juvenile court's written decision.
Aamodt v. Dept. of Transportation , 2004 ND 134, 682 N.W.2d 308
The Department must meet the basic and mandatory provisions of the statute to have authority to suspend driving privileges.
The statutory provision requiring a police officer to include in the notice to the Department reasonable grounds to believe a person had been driving or had been in actual physical control of a motor vehicle while under the influence of alcohol is a basic and mandatory provision.
Bice v. Petro-Hunt, L.L.C. , 2004 ND 113, 681 N.W.2d 74
An order certifying a class action under N.D.R.Civ.P. 23 is appealable, but a trial court's decision to certify a class action will not be overturned on appeal unless the trial court abused its discretion.
In determining whether a class action will provide a fair and efficient adjudication of the controversy, the trial court is not required to specifically address each of the thirteen factors listed in N.D.R.Civ.P. 23(c)(1), but must weigh the competing factors, none of which is predominant.
Ritter, Laber & Assoc. v. Koch Oil , 2004 ND 117, 680 N.W.2d 634
A claim for conversion may arise under the same facts as a claim for a breach of contract.
The gist of a claim for conversion is not the rightful acquisition of the property, but the wrongful possession or deprivation of that property.
A party is not entitled to recover under unjust enrichment when there is an express contract between the parties relative to the same subject matter.
A motion to amend a complaint is addressed to the discretion of a trial court.
City of Mandan v. Sperle , 2004 ND 114, 680 N.W.2d 275
In reviewing a challenge to the sufficiency of the evidence to sustain a conviction, the appellate court will not weigh conflicting evidence or judge the credibility of witnesses but will look only to the evidence most favorable to the verdict and to the reasonable inferences therefrom to determine whether there is substantial evidence to warrant a conviction.
Special verdicts or interrogatories in criminal cases are disfavored because they may coerce a jury into rendering a guilty verdict or destroy the ability of the jury to deliberate upon the issue of guilt or innocence free of extraneous influences.
Hilgers v. Hilgers , 2004 ND 95, 679 N.W.2d 447
N.D.R.Civ.P. 6(e), permitting an additional three days to be added to the time for service by mail, does not apply to extend the time when the time begins to run only after actual receipt of notice.
A letter opinion is not an appealable order unless followed by a subsequently entered consistent judgment or order.
The Supreme Court exercises its supervisory authority only to rectify errors and prevent injustice when no adequate alternative remedies exist.
A district court abuses its discretion when it fails to address nonfrivolous issues presented to the court.
Jaste v. Gailfus , 2004 ND 94, 679 N.W.2d 257
A court errs by deciding summary judgment on a legal doctrine other than those raised by the parties unless the parties are given notice and an opportunity to be heard. The error is reversible if not harmless.
Airport Inn Enterprises, Inc. v. Ramage , 2004 ND 92, 679 N.W.2d 269
A condition precedent is one that must be performed or happen before a duty of immediate performance arises on the promise that the condition qualifies.
When an agreement is conditioned upon obtaining financing, a condition precedent to performance of the agreement is created.
When financing is a condition precedent, there is no enforceable agreement until the financing is obtained.
Rydberg v. Rydberg , 2004 ND 73, 678 N.W.2d 534
Issues on appeal are not restricted to those raised in a motion to alter or amend the judgment as long as the issues were raised at the district court.
A statute of limitations acts only to bar the bringing of the specified action and does not affect other remedies.
Paternity can be rebutted by clear and convincing evidence or by a court decree establishing paternity of the child by another man.
Genetic tests are enough to rebut the presumption of paternity by clear and convincing evidence.
Keller v. Bolding , 2004 ND 80, 678 N.W.2d 578
A person's willful failure to destroy or prevent the spread of Canada thistle on land in the person's possession violates North Dakota's public policy.
Forfeitures of estates under leases are not favored.
A condition involving a forfeiture must be interpreted strictly against the party for whose benefit it is created.
A contract cannot be arbitrarily terminated under a provision authorizing termination.
Evidentiary imprecision on the amount of damages does not preclude recovery.
Oldham v. Oldham , 2004 ND 62, 677 N.W.2d 196
A party waives an issue by not providing supporting argument.
Without supportive reasoning or citations to relevant authorities, an argument is without merit.
Ensign v. Bank of Baker , 2004 ND 56, 676 N.W.2d 786
The filing of a Uniform Commercial Code financing statement by a nonresident defendant and its two inspections of collateral in the forum state do not constitute a voluntary or purposeful effort to do business in the forum state for purposes of establishing personal jurisdiction over the nonresident defendant.
Dettler v. Sprynczynatyk, Director, DOT , 2004 ND 54, 676 N.W.2d 799
In an administrative agency appeal, the specifications of error must identify what matters are truly at issue with sufficient specificity to fairly apprise the agency, other parties, and the court of the particular errors claimed.
The purpose of the specificity requirement is to prevent meaningless specifications of error.
Boilerplate specifications of error are insufficient as a matter of law.
A fact-finder can draw reasonable inferences from the evidence.
Johnson v. ND Dept. of Transportation , 2004 ND 59, 676 N.W.2d 807
The twenty-minute waiting period required before the administration of an Intoxilyzer test can begin before arrest.
The waiting period from the S-D2 test can be used when ascertaining the twenty-minute waiting period for the Intoxilyzer test.
Observing someone is not the only way to ascertain that person has had nothing to eat, drink, or smoke during the twenty minutes preceding an Intoxilyzer test.
A fact-finder can draw reasonable inferences from the evidence.
Interest of K.P. , 2004 ND 52, 676 N.W.2d 744
The party moving for a change of venue must establish that the convenience of witnesses and the ends of justice would be promoted by the change.
To modify an alternative treatment order and require hospitalization, the district court must find noncompliance with the terms of the order or find the order is insufficient to prevent the individual under the order from inflicting harm or injuries upon the individual or others.
Any amount of noncompliance with an alternative treatment order is cause for modification.
Dixon v. McKenzie Co. Grazing Association , 2004 ND 40, 675 N.W.2d 414
The governing body of a cooperative grazing association is subject to the general law governing directors of cooperatives.
The good-faith acts of cooperative directors within the cooperative's power and in the exercise of honest business judgment are valid.
A court generally will not interfere with or regulate the conduct of a cooperative's directors in the reasonable and honest exercise of their judgment and duties when their judgment is uninfluenced by personal consideration.
Harfield v. Tate , 2004 ND 45, 675 N.W.2d 155
The commission of an act cannot be proved by showing the commission of similar acts by the same person at other times, or by showing the act was in conformity with the person's character or a character trait.
Morton Co. S.S.B. v. Schumacher , 2004 ND 31, 674 N.W.2d 505
Use of a dangerous weapon without domestic violence is not enough to create a rebuttable presumption against awarding custody under N.D.C.C. 14-09-06.2(1)(j).
Under some circumstances, destroying property with a dangerous weapon could be domestic violence.
If a presumption against custody arises under N.D.C.C. 14-09-6.2(1)(j), the presumption must be rebutted by clear and convincing evidence.
Clear and convincing evidence to rebut a presumption against custody may require the accused to demonstrate why custody with the accuser is not in the child's best interests.
Clear and convincing evidence exists to rebut the presumption when none of the "best interests of the child" factors favor the other party.
State v. Bollingberg , 2004 ND 30, 674 N.W.2d 281
A court may look to other parts of a search warrant to determine whether the command portion suffers from a clerical error.
When there is no indication of any logical reason why a requested search was prohibited in a search warrant, this may be evidence of a clerical error.
Amsbaugh v. Amsbaugh , 2004 ND 11, 673 N.W.2d 601
The owner of real property may testify as to the value of his land without further qualification or special knowledge.
If a property valuation is within the range of evidence, it is not clearly erroneous.
A property division need not be equal to be equitable, but a substantial disparity must be explained.
In determining an equitable allocation of repayment of debts, the trial court may consider which parties have incurred particular debts and the purposes for the debts.
Both economic and non-economic fault are proper factors for the trial court to consider in dividing marital property.
Uncontrolled drinking contributing to the breakdown of a marriage can be considered a matter of fault in determining whether a spouse is disadvantaged.
Gratech Co., Ltd. v. Wold Engineering, P.C. , 2003 ND 200, 672 N.W.2d 672
Contracts for the construction and repair of a highway can include contracts for engineering and other professional services needed to complete the construction or repair.
Controversies between a contractor and a third party arising out of any contract for the construction or repair of highways entered into by the director of the department of transportation must be submitted to arbitration, and the arbitrators shall determine all controversies growing out of the contract.
VND, LLC v. Leevers , 2003 ND 198, 672 N.W.2d 445
The right to the possession of real estate is the only fact that can be litigated in a summary eviction action unless damages or rent is claimed.
When the right to possession depends on whether or not rent was paid or whether there are material breaches, evidence can be presented to determine those issues.
Charges classified as additional rents and defined as such under a lease are considered rents for the purpose of summary eviction.
Failure to pay rent when a credit is due cannot justify summary eviction.
When a lessee is required to purchase insurance of an "all risk" form under a lease to "protect against any loss, damage and/or destruction to the building or any other insurable portion of the demised premises," the language does not also obligate the lessee to provide for liability insurance.
Custom and usage need not be considered when the language of the lease is not ambiguous.
Laches and waiver do not apply when a party is not trying to assert a right or bring a claim.
Fish v. Dockter , 2003 ND 185, 671 N.W.2d 819
To be defamatory, a statement must be false, but there is no liability for defamatory statements that are privileged.
There is a qualified privilege for communications made, without malice, to an interested person by one who is also interested so as to afford a reasonable ground for supposing the motive for the communication innocent.
There is an absolute privilege for communications made incident to and during administrative proceedings.
Christianson v. Christianson , 2003 ND 186, 671 N.W.2d 801
No North Dakota statute or case law provides for the imputation of income in spousal support cases.
Equalization of income is not a goal or a measure of spousal support although it is a factor which may be considered.
Hanson v. Director, ND Dept. of Trans. , 2003 ND 175, 671 N.W.2d 780
Weaving twice onto the lane-dividing line on an interstate highway, even without erratic movement or sharp veering, can be sufficient to stop a vehicle.
A vehicle weaving within its own lane may be enough to justify the stop of a vehicle.
Although reasonable suspicion to stop a vehicle requires more than a "mere hunch," this standard does not require an officer to see a motorist violate a traffic law.
The totality of circumstances is considered when determining whether reasonable suspicion exists to stop a vehicle.
State v. Beciraj , 2003 ND 173, 671 N.W.2d 250
The crime of conspiracy is limited to agreements to engage in a crime or crimes that are defined elsewhere.
Conspiracy does not require that an offense actually be committed as long as there is an agreement and an overt act to effect an objective of the conspiracy.
The act for the purpose of conspiracy can range from an act that would be innocent in the absence of a conspiracy to the actual commission of the offense agreed upon.
Conspiracy to commit arson by damaging or destroying one's own property for the purpose of collecting insurance on the loss, may occur even when, unknown to the conspirators, the insurance has lapsed.
Evidence of a prior home fire may be properly admitted if its probative value outweighs any danger of unfair prejudice and the evidence is not used to prove character but is used to show a plan for committing arson for the purpose of collecting insurance.
Wangler v. Lerol , 2003 ND 164, 670 N.W.2d 830
Waiver and estoppel will not operate to create an insurance contract that never existed.
A Miller-Shugart agreement, consisting of a stipulated confessed judgment against an insured, a covenant not to execute on the judgment, and an assignment of claims, does not eliminate the insured's damages and make the assignment of claims ineffective.
A plaintiff need not replead previously dismissed claims in an amended complaint to preserve the right to appeal the dismissal.
McDowell v. McDowell , 2003 ND 174, 670 N.W.2d 876
By signing the findings of fact prepared by an attorney, the district court accepts those findings as its own.
The tender-years doctrine has been repealed in North Dakota.
The public policy of this state is that there is to be no gender bias in custody decisions regardless of the age of the child.
The amount of child support can be set at a date prior to a motion to modify if good reason exists for doing so.
The district court need not predict the income of a child support obligor for past support when tax returns are available.
Grewal v. ND Association of Counties , 2003 ND 156, 670 N.W.2d 336
An employer of an independent contractor is not liable for the acts or omissions of the independent contractor unless the employer retains control of the method, manner, and operative details of the independent contractor's work.
Interest of R.F. , 2003 ND 162, 670 N.W.2d 499
At a mental health hearing on a petition for discharge, the burden of proof is the same as at an involuntary treatment hearing.
The petitioner must prove by clear and convincing evidence that the respondent is a person requiring mental health treatment.
A person requiring treatment has the right to the least restrictive means of treatment.
State v. Ehli , 2003 ND 133, 667 N.W.2d 635
Due process requires that parties be given notice and afforded a meaningful opportunity to present objections.
Valley Honey Co. v. Graves , 2003 ND 125, 666 N.W.2d 453
If a condition appears on the face of a grant of real property, the grant takes effect on performance of the condition.
On a motion to amend judgment for additional costs, a party must provide the court with sufficient grounds for why it failed to bring the cost in its original affidavit of costs.
Ringsaker v. Workforce Safety and Insurance , 2003 ND 122, 666 N.W.2d 448
Litigants have a duty to comply with clearly communicated case-management orders.
Service of a brief by mail is complete upon mailing, but filing requires actual receipt.
A trial court may take any appropriate action against any person failing to perform an act required by court order.
Bladow v. Bladow , 2003 ND 123, 665 N.W.2d 724
The proceeds of a personal injury settlement received during the marriage are part of the marital estate, and their distribution is part of the equitable distribution of property in a divorce.
Lawrence v. Roberdeau , 2003 ND 124, 665 N.W.2d 719
Witness immunity bars a suit challenging a witness's testimony.
A state employee is not personally liable for money damages in a negligence case when the injury is proximately caused by the employee acting within the scope of employment.
Coons v. Coons , 2003 ND 115, 665 N.W.2d 60
Where a presumption of domestic violence has been made and not yet rebutted, interim custody may be transferred from the presumed perpetrator until the presumption is rebutted by clear and convincing evidence.
State v. Matthews , 2003 ND 108, 665 N.W.2d 28
A warrantless search of a dwelling for the purpose of investigation may be upheld under the emergency doctrine when the primary intent of the investigation is to render aid or assistance to someone in a dangerous situation.
An emergency doctrine search requires that: (1) the police have reasonable grounds to believe there is an emergency at hand and there is an immediate need for police assistance for the protection of life or property; (2) the search must not be motivated primarily by intent to arrest and seize evidence; (3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.
Tarnavsky v. Tarnavsky , 2003 ND 110, 666 N.W.2d 444
A partnership is an association of two or more persons to carry on as co-owners in business for profit and requires an intention to be partners, co-ownership of the business, and a profit motive.
A trial court has discretion to grant a motion to amend pleadings to conform to the evidence under N.D.R.Civ.P. 15(b).
Hogan v. Hogan , 2003 ND 105, 665 N.W.2d 672
That the trial court's decision did not follow the custody investigator's recommendation is not convincing evidence that the court failed to adequately consider the report or erred in exercising its judgment in its custody award.
A party who fails to present specific evidence of a property's value lacks evidence that a trial court erred in granting a percentage of the marital or nonmarital estate in a property division if, at the time of the trial, the court finds the valuation is too speculative.
Damron v. State , 2003 ND 102, 663 N.W.2d 650
To claim ineffective assistance of counsel in a plea agreement, a defendant must prove a serious dereliction on the part of the defendant's attorney that prevented the guilty plea from being anything other than knowingly and intelligently made.
Olander Contracting Co. v. Gail Wachter Investments , 2003 ND 100, 663 N.W.2d 204
After becoming final, an appellate judgment on the merits of a dispute should be set aside under N.D.R.Civ.P. 60(b) only in exceptional circumstances.
N.D.R.Civ.P. 60(b) can be used to relieve a party from a judgment by vacating it, but it cannot be used to award additional affirmative relief.
Interest of I.K. , 2003 ND 101, 663 N.W.2d 197
Before a court may order an extension of a continuing alternative treatment order, it must find from specific evidence that the patient is mentally ill and that there is a reasonable expectation that if the individual went untreated, there exists a serious risk of harm to the patient, to others, or to property.
Statutory mandates must be followed before a court can order an individual requiring treatment to take prescribed medication.
State v. Thorson , 2003 ND 76, 660 N.W.2d 581
To establish obvious error, the defendant has the burden to show (1) error, (2) that is plain, and (3) that affects substantial rights.
Under N.D.R.Crim.P. 16, the prosecution must disclose, upon the defendant's request, names and statements of witnesses the prosecution intends to call and also the relevant statements within the prosecution's possession or control of other persons.
The defendant's failure to discover evidence from a lack of reasonable diligence defeats a Brady claim that the prosecution withheld that evidence.
Morton Co. Social Service Bd. v. Hakanson , 2003 ND 78, 660 N.W.2d 599
A child support order is modified when past due child support obligations are forgiven.
When a child support judgment is transcribed and filed with the clerk of court in another county for the purpose of enforcement, the original county does not lose continuing jurisdiction for all other child support matters, such as modification of the original judgment.
State v. Moore , 2003 ND 83, 662 N.W.2d 263
The right to appeal and the deadline for filing an appeal are statutory.
A defendant may not appeal the dismissal of a charge without prejudice.
Koapke v. Herfendal , 2003 ND 64, 660 N.W.2d 206
A referring physician does not have a duty to obtain a patient's informed consent unless the referring physician formally prescribed or performed the procedure.
Retaining a "degree of participation" in the treatment plan associated with a surgery is not enough to create liability on the part of the referring physician.
Bachmeier v. Workers Comp. , 2003 ND 63, 660 N.W.2d 217
A claimant who files a reapplication seeking a resumption of discontinued disability benefits must prove an actual wage loss caused by a significant change in the compensable medical condition.
A claimant who was not working and had not sought employment before or after a change in his compensable medical condition did not incur an actual wage loss.
Lanners v. Johnson , 2003 ND 61, 659 N.W.2d 864
When a plaintiff presents a prima facie case for child custody modification, an evidentiary hearing must be held.
Amyotte v. Rolette Co. Housing Authority , 2003 ND 48, 658 N.W.2d 324
A landlord's duty to protect others from harm by an animal on the premises arises only when the landlord knows that the animal is dangerous and presents an unreasonable risk of harm.
An issue of fact becomes a question of law if reasonable persons could reach only one conclusion from the evidence.
Morris v. Job Service , 2003 ND 45, 658 N.W.2d 345
A claimant for unemployment benefits has the burden of establishing the claimant, rather than the claimant's employers, contributed to a pension fund, to avoid the pension offset provisions of N.D.C.C. 52-06-02(15).
The pension offset provisions of N.D.C.C. 52-06-02(15) do not distinguish between amounts contributed to a pension fund by an employer and amounts contributed to a pension fund by an employer under the directives of a collective bargaining agreement.
State v. Klose , 2003 ND 39, 657 N.W.2d 276
After an insanity defense is raised by the defendant, the State must prove beyond a reasonable doubt that the defendant was sane at the actual moment of the offense.
A verdict is not inconsistent when it is permissible under the law and facts of the case.
Photographs in a homicide trial can be admitted into evidence under appropriate circumstance even if they tend to excite the emotions of the jury.
A defendant may waive the right to have a jury's question answered in open court.
Superpumper, Inc. v. Nerland Oil , 2003 ND 33, 657 N.W.2d 250
Lack of finality in an arbitration decision is not sufficient ground to overturn an award.
An arbitration decision may be upheld on appeal even if it is based on a mistake of fact or law or has a possibility of being brought to court at some later date on an issue not fully addressed by the arbitrator.
Peltier v. State , 2003 ND 27, 657 N.W.2d 238
Upon revocation of probation, the court is not bound by the terms of the plea agreement and ma