Mary Muehlen Maring, Justice State v. Ferrie , 2008 ND 170,
(Dissenting)
Highlight of the Opinion of the Court:
A court may not dismiss a criminal case for failure to prosecute when there has been no notice to the state.
State v. Gay , 2008 ND 84, 748 N.W.2d 408
(Joined in dissent)
Highlight of the Opinion of the Court:
Under the Fourth Amendment, a seizure occurs whenever an officer stops an individual and restrains his freedom, and that seizure must be reasonable.
A search, under the Fourth Amendment, occurs when the government intrudes upon an individual's reasonable expectation of privacy.
A pat-down search is not simply a routine preliminary to a more extensive search.
The exclusionary rule prohibits the admission of physical and testimonial evidence gathered illegally.
Makedonsky v. ND Department of Human Services , 2008 ND 49, 746 N.W.2d 185
(Dissenting)
Highlight of the Opinion of the Court:
An applicant for Medicaid benefits has the burden of proving eligibility.
An applicant for Medicaid benefits may be required to initiate an appropriate legal action to make an asset available for purposes of calculating eligibility for Medicaid benefits.
An attorney in fact has a relation of personal confidence with the principal and is deemed a trustee, and all transactions between a trustee and a beneficiary are presumed to be without sufficient consideration and under undue influence.
Niemann v. Niemann , 2008 ND 54, 746 N.W.2d 3
(Concurring and dissenting)
Highlight of the Opinion of the Court:
A court does not reach the consideration of the best interest factors, which include the domestic violence presumption, unless the court first finds a significant change in circumstances.
If domestic violence exists under the definition in N.D.C.C. 14-07.1-01 but does not rise to the level necessary to invoke the presumption contained in N.D.C.C. 14-09-06.2(j), there may nevertheless be a change of circumstances which may justify a change in custody under N.D.C.C. 14-09-06.6.
Huwe v. Workforce Safety and Insurance , 2008 ND 47, 746 N.W.2d 158
(Concurring)
Highlight of the Opinion of the Court:
Although WSI has the authority to weigh the credibility of medical evidence and resolve conflicting medical opinions, it may not do so in an unreasoned manner but must consider the entire record, clarify inconsistencies, and adequately explain its reasons for disregarding medical evidence favorable to the claimant.
A claimant reapplying for disability benefits under N.D.C.C. 65-05-08(1) bears the burden of showing a significant change in his compensable medical condition and an actual wage loss caused by the significant change in his compensable medical condition.
Frueh v. Frueh , 2008 ND 26, 745 N.W.2d 362
(Concurring)
Highlight of the Opinion of the Court:
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.
People to Save the Sheyenne River v. Dept. of Health , 2008 ND 34, 744 N.W.2d 748
(Joined in concurrence)
Highlight of the Opinion of the Court:
The Health Department's decision to modify a North Dakota Pollutant Discharge Elimination System permit will not be reversed on appeal unless the decision is arbitrary, capricious, or unreasonable.
An administrative agency has a reasonable range of discretion to apply its own regulations, and the agency's expertise is entitled to deference when the subject matter is complex.
A North Dakota Pollutant Discharge Elimination System permit may be modified for cause, which includes new information or to correct a technical mistake.
Overland v. Overland , 2008 ND 6, 744 N.W.2d 67
(Concurring and dissenting)
Highlight of the Opinion of the Court:
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.
Manitoba Public Ins. Corp. v. Dakota Fire Ins. Co. , 2007 ND 206, 743 N.W.2d 788
(Joined in dissent)
Highlight of the Opinion of the Court:
A procedural remedy is not a vested right and is subject to repeal, modification, or change.
State v. Hemmes , 2007 ND 161, 740 N.W.2d 81
(Joined in concurrence)
Highlight of the Opinion of the Court:
Brady v. Maryland, 373 U.S. 83 (1963) does not apply to probation revocation proceedings.
The evidentiary disclosure requirements of N.D.R.Crim.P. 16 apply to probation revocation proceedings.
Interest of T. E. , 2007 ND 166, 740 N.W.2d 100
(Joined in concurrence)
Highlight of the Opinion of the Court:
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.
Burns v. Burns , 2007 ND 134, 737 N.W.2d 243
(Concurring and dissenting)
Highlight of the Opinion of the Court:
A continuance is the proper remedy for a party claiming surprise, and a judgment will not ordinarily be reversed on appeal for surprise when no request is made for a continuance at the time and there is no showing of inability to meet the situation.
If evidence of domestic violence does not rise to the level to trigger the presumption against an award of custody, the court may still consider the evidence as one of the best interest factors.
A district court's concerns about maintaining the custodial relationship that existed prior to the divorce and allowing the child to attend the same school and live in the same house are all valid considerations under N.D.C.C. 14-09-06.2(1)(d).
Being a child's primary caretaker does not guaranty a custody award in a divorce action.
Farmers Union Mut. Ins. Co. v. Assoc. Electric and Gas Ins. Services Ltd. , 2007 ND 135, 737 N.W.2d 253
(Dissenting)
Highlight of the Opinion of the Court:
Statutory interpretation is a question of law and fully reviewable on appeal.
Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears.
Statutes are construed as a whole and are harmonized to give meaning to related provisions.
If the language of a statute is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit.
Under N.D.C.C. 26.1-41-17, which permits a basic no-fault insurer to seek equitable allocation and intercompany arbitration for no-fault benefits paid, "the motor vehicle liability insurer of a secured person" does not include an excess liability insurer.
State v. Vantreece , 2007 ND 126, 736 N.W.2d 428
(Joined in dissent)
Highlight of the Opinion of the Court:
Under N.D.C.C. 12.1-20-03(1)(a), the State must prove beyond a reasonable doubt the defendant, by force or threat of death or serious harm, compelled the victim to submit to a sexual act.
In a criminal case charging the defendant with having sex by force, the complainant's mental capacity is relevant to the question of the extent of force required to compel the victim to submit.
Roth v. State , 2007 ND 112, 735 N.W.2d 882
(Dissenting)
Highlight of the Opinion of the Court:
To prove an ineffective assistance claim based on counsel's failure to move to suppress evidence, the petitioner must show that he would have prevailed on the suppression motion and that there is a reasonable probability the successful motion would have affected the outcome.
The "reasonable cause" standard contained in N.D.R.Crim.P. 41(c)(1)(E) focuses on the necessity for executing the search warrant in the nighttime rather than in the daytime.
A nighttime searches may be upheld when there is particularized evidence of drug trafficking, sales, or manufacture which occurred late at night or in the early morning hours.
Chamley v. Khokha , 2007 ND 69, 730 N.W.2d 864
(Concurring)
Highlight of the Opinion of the Court:
Any person rendering aid or assistance with an expectation of remuneration is not protected by North Dakota's Good Samaritan Act.
A doctor who is a salaried employee of a hospital and performs a procedure in the hospital has an expectation of remuneration.
Lorenz v. Lorenz , 2007 ND 49, 729 N.W.2d 692
(Concurring and dissenting)
Highlight of the Opinion of the Court:
In determining the value of the parties' marital estate, a district court must include all the parties' assets and debts in the marital estate.
A substantial disparity in the property distribution must be explained.
A district court's findings of fact must be sufficient to allow a reviewing court to understand the basis for the district court's decision.
The decision whether to award spousal support is a finding of fact and will not be reversed on appeal unless it is clearly erroneous.
Wagner v. Wagner , 2007 ND 33, 728 N.W.2d 318
(Dissenting)
Highlight of the Opinion of the Court:
A spousal support determination will not be reversed on appeal unless it is clearly erroneous.
Rehabilitative spousal support is awarded to equalize the burdens of divorce or to restore an economically disadvantaged spouse to independent status by providing the spouse with the opportunity to acquire an education, training, work skills, or experience to become self-supporting.
Whitecalfe v. ND Dept. of Transportation , 2007 ND 32, 727 N.W.2d 779
(Joined in concurrence)
Highlight of the Opinion of the Court:
The Department of Transportation must meet the basic and mandatory provisions of the statute to have authority to revoke driving privileges.
When a licensee is arrested for driving under the influence and receives an initial notice of revocation of driving privileges, the licensee is not denied due process simply because the initial notice does not include a statement of the arresting officer's probable cause.
Klimple v. Bahl , 2007 ND 13, 727 N.W.2d 256
(Concurring and dissenting)
Highlight of the Opinion of the Court:
Although there generally is no requirement in ordinary negligence cases for expert testimony to establish the elements of the tort, expert testimony is required if the issue is beyond the area of common knowledge or lay comprehension.
Although hypertechnical words are not necessary for admission of expert medical testimony, the test for admissibility is whether the expert's testimony demonstrates the expert is expressing a medical opinion that is more probable, or more likely than not.
A doctor's testimony that a certain thing is "possible" is no evidence at all.
Genter v. Workforce Safety & Ins. Fund , 2006 ND 237, 724 N.W.2d 132
(Dissenting)
Highlight of the Opinion of the Court:
Workforce Safety and Insurance must determine whether a medical assessment team is required in a particular case based on the nature of the claimed injury.
If a medical assessment team is required to evaluate an injury, Workforce Safety and Insurance has the discretion to determine the composition of the team on a case-by-case basis.
Klein v. Larson , 2006 ND 236, 724 N.W.2d 565
(Joined in dissent)
Highlight of the Opinion of the Court:
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.
Stenvold v. Workforce Safety & Insurance , 2006 ND 197, 722 N.W.2d 365
(Joined in concurrence)
Highlight of the Opinion of the Court:
An administrative agency generally may not consider evidence which has not been offered, admitted, and made a part of the official record of the administrative proceeding.
The district court's appellate review of an administrative agency decision is limited to the agency record filed with the court.
Strand v. Cass County , 2006 ND 190, 721 N.W.2d 374
(Concurring)
Highlight of the Opinion of the Court:
Jury instructions are reviewed to determine whether, as a whole, they fairly and adequately advised the jury of the applicable law.
A local government body may only be held liable for constitutional violations which result from a policy or custom of the government body.
A district court abuses its discretion when it fails to address nonfrivolous issues presented to the court.
City of Fargo v. Komad , 2006 ND 177, 720 N.W.2d 619
(Concurring)
Highlight of the Opinion of the Court:
A defendant's constitutional right to be present at trial is met when the defendant appears and is tried in municipal court and there is no constitutional right to be present for trial anew on appeal in district court.
Under the N.D. Rules of Criminal Procedure, a defendant convicted in municipal court has a right to be present for a trial anew in district court on appeal.
Proceeding with a trial anew on appeal to district court, when the defendant is absent, is not harmless error.
State v. Salveson , 2006 ND 169, 719 N.W.2d 747
(Dissenting)
Highlight of the Opinion of the Court:
A trial court is allowed the widest range of discretion in criminal sentencing.
Multiple class A misdemeanor offenses may be deemed by the sentencing court to involve substantially different criminal objectives if they do not fall under one of the following three categories: (1) one offense is an included offense of the other; (2) one offense consists of a conspiracy, attempt, solicitation, or other form of preparation to commit, or facilitation of, the other; or (3) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.
The crimes of aggravated reckless driving and driving while under the influence constitute two crimes with substantially different criminal objectives.
Dvorak v. Dvorak , 2006 ND 171, 719 N.W.2d 362
(Concurring and dissenting)
Highlight of the Opinion of the Court:
A custodial parent seeking to change the residence of a child to another state has the burden to prove by a preponderance of evidence that the move is in the child's best interest.
A district court's explanation for a disparity in a property distribution must be sufficient to understand the rationale of its determination.
In deciding whether to award attorney's fees for an appeal in a divorce proceeding, a district court must balance the parties' needs and ability to pay.
Gietzen v. Gabel , 2006 ND 153, 718 N.W.2d 552
(Dissenting)
Highlight of the Opinion of the Court:
When there is credible evidence of domestic violence, it is the predominate factor in a child custody decision.
Specific findings and conclusions are required when a district court addresses whether evidence of domestic violence triggers the presumption against awarding custody of a child to a perpetrator of domestic violence.
When reciprocal domestic violence is claimed, a district court must make specific findings on the degree of violent behavior by each parent.
State v. Blue , 2006 ND 134, 717 N.W.2d 558
(Concurred in result)
Highlight of the Opinion of the Court:
Under Crawford v. Washington, 541 U.S. 36 (2004), the admission of out-of-court testimonial statements in criminal cases is precluded, unless the witness is unavailable to testify and the accused has had an opportunity to cross-examine the declarant.
Videotape recording of child's statement to forensic interviewer that included government involvement is a testimonial statement and if the child is available to testify, and the playing of the videotape without the opportunity to cross-examine the witness violates defendant's constitutional right to confront his accuser.
The "reliability and trustworthiness" factors are still to be used for non-testimonial statements. But when testimonial statements are at issue, the constitutional right to confrontation cannot be superseded by reliability and trustworthiness.
Choice Financial Group v. Schellpfeffer , 2006 ND 87, 712 N.W.2d 855
(Dissenting)
Highlight of the Opinion of the Court:
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.
Steen and Berg Co. v. Berg , 2006 ND 86, 713 N.W.2d 87
(Joined in dissent)
Highlight of the Opinion of the Court:
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.
Toso v. Workforce Safety & Insurance , 2006 ND 70, 712 N.W.2d 312
(Dissenting)
Highlight of the Opinion of the Court:
No relief can be granted when the record in the case provides no evidence to make determinations that must be made in order to grant or deny a request.
Perez v. Nichols , 2006 ND 20, 708 N.W.2d 884
(Concurring)
Highlight of the Opinion of the Court:
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.
Farmers Union Mutual Ins. Co. v. Decker , 2005 ND 173, 704 N.W.2d 857
(Dissenting)
Highlight of the Opinion of the Court:
The evidence must show the claim is within an exception to the exclusion in order to benefit from coverage.
An insurer's obligation to defend an insured and pay the resulting attorney fees arises when the complaint alleges facts that create a possibility of coverage under the policy.
State v. Bartelson , 2005 ND 172, 704 N.W.2d 824
(Dissenting)
Highlight of the Opinion of the Court:
An officer's subjective intent is irrelevant on the question of probable cause if a driver has committed a traffic violation.
An officer's probable cause does not disintegrate simply because another police officer had previously stopped the same vehicle for the same violation.
Bjerklie v. Workforce Safety and Insurance , 2005 ND 178, 704 N.W.2d 818
(Concurred in result)
Highlight of the Opinion of the Court:
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.
City of Bismarck v. Judkins , 2005 ND 143, 701 N.W.2d 911
(Joined in concurrence)
Highlight of the Opinion of the Court:
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.
Woods v. Ryan , 2005 ND 92, 696 N.W.2d 508
(Dissenting)
Highlight of the Opinion of the Court:
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.
Larson v. Larson , 2005 ND 67, 694 N.W.2d 13
(Dissenting)
Highlight of the Opinion of the Court:
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.
Sweeney v. Sweeney , 2005 ND 47, 693 N.W.2d 29
(Joined in concurrence)
Highlight of the Opinion of the Court:
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.
Sweeney v. Sweeney , 2005 ND 47, 693 N.W.2d 29
(Concurring)
Highlight of the Opinion of the Court:
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.
Gamboa v. State , 2005 ND 48, 693 N.W.2d 21
(Concurring)
Highlight of the Opinion of the Court:
In post-conviction relief proceedings, it is not an abuse of discretion to deny default judgment when a petitioner cannot show he suffered any prejudice from the State's untimely response.
Post-conviction relief applications seeking withdrawal of a guilty plea must be made in a timely manner in accordance with Rule 32, N.D.R.Crim.P.
Beckler v. Workforce Safety and Insurance , 2005 ND 33, 692 N.W.2d 483
(Dissenting)
Highlight of the Opinion of the Court:
A claimant seeking reinstatement of discontinued disability benefits must show a significant change in his compensable medical condition and an actual wage loss caused by the change in medical condition.
To prove actual wage loss, a claimant must show that he was earning wages from employment when the change in his medical condition occurred.
An appeal of an administrative agency decision invokes the appellate jurisdiction of the district court, and the court's review must be based only on the administrative record filed with the court.
State v. Linghor , 2004 ND 224, 690 N.W.2d 201
(Concurred in result)
Highlight of the Opinion of the Court:
Probable cause to arrest an automobile passenger exists where drug paraphernalia is in plain view in the car.
The existence of an arrest is determined objectively, gauged by whether a reasonable person would conclude he was under arrest and not free to leave.
When a jury is unable to reach a verdict and a mistrial results, a subsequent retrial is not double jeopardy.
A trial judge has discretion in declaring a mistrial due to a hung jury, and while reasonable jury deliberation should be encouraged, a judge does not abuse that discretion in declaring a mistrial when the judge asks the jury for a list of divisive issues, polls the jurors to determine whether a verdict could be reached, and spends considerable time consulting both parties regarding available options.
Long v. Jaszczak , 2004 ND 194, 688 N.W.2d 173
(Concurred in result)
Highlight of the Opinion of the Court:
For purposes of the statute of limitations, an action commences when the summons, with the intent it shall be served, is delivered to the sheriff or officer of the county where the defendant resides.
A primary physician, ordering a diagnostic procedure to further a patient's care, has a legal duty to obtain the patient's informed consent.
Generally, in cases of informed consent, materiality of risk and causation are questions for the trier of fact.
Expert testimony is not required to prove whether a reasonable patient would attach significance to a particular risk.
A hospital does not owe a legal duty to obtain its patients' informed consent, it is a physician's responsibility.
Baity v. Workforce Safety & Insurance , 2004 ND 184, 687 N.W.2d 714
(Dissenting)
Highlight of the Opinion of the Court:
Supplementary disability benefits may be awarded only after Workforce Safety and Insurance has determined the claimant is incapable of rehabilitation of earnings capacity and is therefore permanently and totally disabled.
An agency's systemic disregard of the law may warrant reversing the agency decision without a showing of prejudice by the party relying on the improper conduct, but evidence of a single improper act is not sufficient to establish systemic disregard.
Nodak Mutual Ins. Co. v. Wamsley , 2004 ND 174, 687 N.W.2d 226
(Dissenting)
Highlight of the Opinion of the Court:
The significant-contacts approach to choice-of-law questions is appropriate in contract cases with multistate factual contacts.
In insurance contract cases, consideration of predictability of results favors application of the law of the state in which the insurance policy was negotiated, issued, and the premiums paid.
Grinnell Mutual Reinsurance Co. v. Lynne , 2004 ND 166, 686 N.W.2d 118
(Concurring)
Highlight of the Opinion of the Court:
To successfully oppose a motion for summary judgment, a party must not rely upon unsupported or conclusory allegations.
An insurance policy is not ambiguous when the plain language of the policy precludes coverage.
A causal relationship exists when damage to property arises out of the inherent nature of the work performed.
A house is real property and a fixture when the actions of the owner manifest an intention to have the house remain on the property permanently.
State v. Mitzel , 2004 ND 157, 685 N.W.2d 120
(Joined in dissent)
Highlight of the Opinion of the Court:
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.
State v. Stockert , 2004 ND 146, 684 N.W.2d 605
(Concurring and dissenting)
Highlight of the Opinion of the Court:
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.
Nationwide Mutual Ins. v. Lagodinski , 2004 ND 147, 683 N.W.2d 903
(Concurred in result)
Highlight of the Opinion of the Court:
A tractor and trailer is subject to motor vehicle registration when it is used on public highways for transportation.
The doctrine of reasonable expectations does not operate to provide coverage when the policy language is not ambiguous.
An insurance policy is not ambiguous when the plain language of the policy operates to preclude coverage.
Fast v. State , 2004 ND 111, 680 N.W.2d 265
(Concurred in result)
Highlight of the Opinion of the Court:
The state may be held liable for money damages for an injury caused from some condition or use of tangible property under circumstances in which the state, if a private person, would be liable to the claimant.
Landowners owe a general duty to lawful entrants to maintain their property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk.
Landowners are not liable for snow removal efforts that do not create an unreasonably dangerous or more hazardous condition.
Meyer v. Meyer , 2004 ND 89, 679 N.W.2d 273
(Concurring and dissenting)
Highlight of the Opinion of the Court:
A change in spousal support, which was initially awarded upon the parties' stipulation, should be made only with great reluctance by the trial court upon a showing of a material change in circumstances.
Findings of fact should be sufficiently stated so the reviewing court is able to understand the factual basis for the trial court's decision, particularly in view of our standards for modification of spousal support.
A case will be remanded if the reviewing court cannot discern the rationale for the result reached by the trial court.
State v. Guscette , 2004 ND 71, 678 N.W.2d 126
(Dissenting)
Highlight of the Opinion of the Court:
A person is seized under the Fourth Amendment if, in view of all the surrounding circumstances, a reasonable person would believe he or she is not free to leave the area.
A seizure does not occur under the Fourth Amendment simply because a law enforcement officer asks a person questions, and as long as reasonable persons would feel free to disregard the officer and go about their business, the encounter is consensual and no reasonable suspicion of criminal activity is required.
Consent to a search is voluntary if, under the totality of the circumstances, it is the product of an essentially free choice and not the product of coercion.
Rydberg v. Rydberg , 2004 ND 73, 678 N.W.2d 534
(Dissenting)
Highlight of the Opinion of the Court:
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.
Gullickson v. Kline , 2004 ND 76, 678 N.W.2d 138
(Concurred in result)
Highlight of the Opinion of the Court:
Only a person who has been the victim of disorderly conduct, or the parent or guardian of a minor who has been a victim, may seek a disorderly conduct restraining order.
Procedural due process requires fundamental fairness, which, at a minimum, necessitates notice and a meaningful opportunity for a hearing appropriate to the nature of the case.
Dettler v. Sprynczynatyk, Director, DOT , 2004 ND 54, 676 N.W.2d 799
(Joined in concurrence)
Highlight of the Opinion of the Court:
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.
Groleau v. Bjornson Oil Co. , 2004 ND 55, 676 N.W.2d 763
(Concurring and dissenting)
Highlight of the Opinion of the Court:
Under premises liability law, a defendant must have had control over the property where the injury occurred in order to find the defendant owed a duty to entrants upon the property.
Although a landowner generally owes a duty to lawful entrants to maintain property in a reasonably safe condition, the landowner's duty is limited when a dangerous condition is known or obvious to the entrant.
A landowner is not liable to entrants for injury caused by a known or obvious danger unless the landowner should anticipate the harm despite such knowledge or obviousness.
The determination whether a dangerous condition is open and obvious is generally a question of fact for the trier of fact.
State v. Utvick , 2004 ND 36, 675 N.W.2d 387
(Concurring and dissenting)
Highlight of the Opinion of the Court:
Probable cause is not established for a no-knock search warrant when the magistrate is not presented with any information regarding the suspect's ability to destroy the evidence or the ease with which evidence may be destroyed.
State courts apply the good-faith exception to the exclusionary rule in a manner consistent with United States Supreme Court precedent when evaluating whether evidence should be excluded due to a violation of the Fourth Amendment.
The good-faith exception to the federal exclusionary rule must be considered when a no-knock warrant has been issued in error.
A no-knock search warrant is not issued on a per se basis when the officer presents information sufficiently particularized to rebut any legal conclusion that the warrant was issued on a per se basis, even though the information was not sufficiently particularized to provide probable cause for a no-knock provision.
Nesvig v. Nesvig , 2004 ND 37, 676 N.W.2d 73
(Concurred in result)
Highlight of the Opinion of the Court:
The actual nature of the subject matter of an action determines whether an action is a legal malpractice case.
Good faith is not a defense to a legal malpractice action.
A fiduciary relationship exists when one is under a duty to give advice for the benefit of another upon matters within the scope of the relationship.
An attorney may undertake to manage or invest a client's property, and in doing so, the attorney not only must conform to the applicable standard of care and comply with the fiduciary obligations, but also may assume the responsibilities of a trustee.
Winer v. Penny Enterprises, Inc. , 2004 ND 21, 674 N.W.2d 9
(Dissenting)
Highlight of the Opinion of the Court:
A dismissal without prejudice is appealable if it has the practical effect of terminating the litigation in the plaintiff's chosen forum.
A state district court lacks subject-matter jurisdiction over an action brought by a non-Indian plaintiff against Indian defendants for damages resulting from a motor vehicle accident on a state highway within the exterior boundaries of an Indian reservation.
Tank v. Tank , 2004 ND 15, 673 N.W.2d 622
(Dissenting)
Highlight of the Opinion of the Court:
On appeal, a trial court's denial of an evidentiary hearing on a motion to modify custody is reviewed de novo.
A party seeking a change of child custody is entitled to an evidentiary hearing if the party presents a prima facie case by alleging, with supporting affidavits, sufficient facts which, if proved, would support a change in custody.
Potential endangerment to a child's physical or mental health or a mature child's reasonable preference to live with one parent may be a significant change of circumstances supporting custody change.
A custodial parent's willful and consistent denial or interference with the non-custodial parent's visitation may also be a significant change warranting custody change, if the denial or interference affects the child's best interests.
Mock v. Mock , 2004 ND 14, 673 N.W.2d 635
(Dissenting)
Highlight of the Opinion of the Court:
A party seeking a change of child custody is entitled to an evidentiary hearing if he presents a prima facie case by alleging, with supporting affidavits, sufficient facts which, if uncontradicted, would support a custody change.
Potential endangerment to a child's physical or mental health may be a significant change of circumstances supporting a modification of custody.
The district court may consider pre-divorce conduct when the facts were unknown to the court at the time of the original stipulation.
Amsbaugh v. Amsbaugh , 2004 ND 11, 673 N.W.2d 601
(Concurred in result)
Highlight of the Opinion of the Court:
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
(Concurring and dissenting)
Highlight of the Opinion of the Court:
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.
Christianson v. Christianson , 2003 ND 186, 671 N.W.2d 801
(Concurring and dissenting)
Highlight of the Opinion of the Court:
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.
Reineke v. Reineke , 2003 ND 167, 670 N.W.2d 841
(Concurring and dissenting)
Highlight of the Opinion of the Court:
The Ruff-Fischer guidelines apply to both property division and spousal support, which ordinarily must be considered together.
Both economic and noneconomic fault are proper factors for the trial court to consider in dividing marital property.
The appointment of a custody investigator or a guardian ad litem is committed to the trial court's discretion.
McDowell v. McDowell , 2003 ND 174, 670 N.W.2d 876
(Concurring)
Highlight of the Opinion of the Court:
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.
Barnes v. Workforce Safety and Insurance , 2003 ND 141, 668 N.W.2d 290
(Concurred in result)
Highlight of the Opinion of the Court:
Nothing in the Rules of Evidence or the statutes governing administrative procedure precludes an employee of an agency from testifying as an expert witness in an administrative proceeding before the agency.
Van Klootwyk v. Baptist Home , 2003 ND 112, 665 N.W.2d 679
(Joined in concurrence)
Highlight of the Opinion of the Court:
The three-month period for providing an admissible expert opinion under N.D.C.C. 28-01-46 applies only when a lawsuit based upon professional negligence is brought against a physician, nurse, or hospital, not a nursing home.
Hoffner v. Johnson , 2003 ND 79, 660 N.W.2d 909
(Dissenting)
Highlight of the Opinion of the Court:
The six-year statute of repose for medical malpractice actions under N.D.C.C. 28-01-18(3) does not violate equal protection.
For equitable estoppel precluding application of a statute of limitation or repose, the plaintiff must show affirmative deception by the defendant.
Koapke v. Herfendal , 2003 ND 64, 660 N.W.2d 206
(Dissenting)
Highlight of the Opinion of the Court:
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
(Dissenting)
Highlight of the Opinion of the Court:
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.
Lesmeister v. ND Workers Comp. , 2003 ND 60, 659 N.W.2d 350
(Concurring and dissenting)
Highlight of the Opinion of the Court:
A claimant reapplying for workers compensation benefits must prove she has sustained an actual wage loss caused by a significant change in her compensable medical condition.
A claimant who is terminated for misconduct does not sustain an actual wage loss caused by a significant change in medical condition.
Schmidt v. Schmidt , 2003 ND 55, 660 N.W.2d 196
(Concurred in result)
Highlight of the Opinion of the Court:
A trial court determining the best interest and welfare of a child in making a custody decision may appropriately consider such things as the child's interaction and interrelationships with a party's extended family and other people, such as childcare providers and others who may significantly affect the child's best interests.
A party may include in a brief materials not in the record if they are judicially cognizable apart from the record as authorities marshaled in support of a legal argument, but may not include material seeking to supplement the evidentiary record.
Gronfur v. Workers Comp. , 2003 ND 42, 658 N.W.2d 337
(Dissenting)
Highlight of the Opinion of the Court:
When reapplying to resume discontinued disability benefits, a claimant must prove an actual wage loss caused by a significant change in the compensable medical condition.
For an actual wage loss, a claimant must have been earning wages from employment when the change in medical condition occurred causing at least a partial loss of those wages.
City of Grand Forks v. Ramstad , 2003 ND 41, 658 N.W.2d 731
(Concurring)
Highlight of the Opinion of the Court:
To establish a Brady violation, the defendant must show the prosecution withheld evidence which was favorable to him.
A defendant alleging a Brady violation must show he could not have obtained the undisclosed evidence with reasonable diligence.
Under N.D.R.Crim.P. 16, the prosecution has a duty to provide documents in the possession of the State Toxicologist's office, even if the defendant could have otherwise obtained the documents himself.
Steinbach v. State , 2003 ND 46, 658 N.W.2d 355
(Joined in concurrence)
Highlight of the Opinion of the Court:
A trial court can summarily dispose of a post-conviction relief application for misuse of process. Process is misused when the defendant: (1) inexcusably fails to raise an issue on direct appeal and now seeks review in an application for post-conviction relief; (2) inexcusably fails to pursue an issue on appeal which was raised at the trial court; (3) inexcusably fails to raise an issue in an initial post-conviction relief application.
Although a party seeking a summary disposition bears the initial burden of showing there is no genuine issue of material fact, that burden may be shifted to the nonmoving party once the moving party points out to the district court there is an absence of evidence to support the nonmoving party's case.
Rittenour v. Gibson , 2003 ND 14, 656 N.W.2d 691
(Dissenting)
Highlight of the Opinion of the Court:
A tenant knowing of a dangerous condition on the premises has a duty to warn a social guest.
A district court abuses its discretion when it submits instructions to the jury that, taken as a whole, contain an error in the law that makes a material difference in how the jury might have understood the law.
State v. Leppert , 2003 ND 15, 656 N.W.2d 718
(Concurred in result)
Highlight of the Opinion of the Court:
The 2001 amendments to N.D.C.C. 31-13-03 authorize DNA testing of persons convicted of nonsexual felonies and establish a DNA data base for the test results of persons convicted of those offenses.
DNA testing for persons convicted of enumerated violent, nonsexual felonies is rationally related to a legitimate purpose and does not violate equal protection.
Hamilton v. Oppen , 2002 ND 185, 653 N.W.2d 678
(Concurred in result)
Highlight of the Opinion of the Court:
Averaging individual jurors' estimates of percentages of fault is not improper in a quotient verdict, but the jurors' prior agreement to be bound by the result of the computation invalidates the verdict.
The trial court's responsibility is to make certain expert testimony is reliable as well as relevant.
Relevant photographs may be excluded from evidence if their probative value is substantially outweighed by the danger of unfair prejudice.
Hamilton v. Oppen , 2002 ND 185, 653 N.W.2d 678
(Joined in concurrence)
Highlight of the Opinion of the Court:
Averaging individual jurors' estimates of percentages of fault is not improper in a quotient verdict, but the jurors' prior agreement to be bound by the result of the computation invalidates the verdict.
The trial court's responsibility is to make certain expert testimony is reliable as well as relevant.
Relevant photographs may be excluded from evidence if their probative value is substantially outweighed by the danger of unfair prejudice.
State v. Aune , 2002 ND 176, 653 N.W.2d 53
(Concurred in result)
Highlight of the Opinion of the Court:
A trial court may order a condition of probation requiring the probationer to stay away from a specific place.
Larson v. Norkot Manufacturing , 2002 ND 175, 653 N.W.2d 33
(Concurring)
Highlight of the Opinion of the Court:
For a cause of action for an attorney's legal malpractice, there must be damages to the client proximately caused by the attorney's breach of a duty to the client; the statute of limitations does not begin to run until the client has incurred some damages from the alleged malpractice; and the statute of limitations is tolled until the client knows, or with reasonable diligence should know, of the injury, its cause, and the defendant attorney's possible negligence.
Grad v. Jepson , 2002 ND 153, 652 N.W.2d 324
(Concurring and dissenting)
Highlight of the Opinion of the Court:
The standard of review for a minor child's name change petition is abuse of discretion.
"Proper and reasonable cause" includes consideration of the best interests of the child in the context of a petition to change a minor child's name.
State v. Yineman , 2002 ND 145, 651 N.W.2d 648
(Concurring)
Highlight of the Opinion of the Court:
To challenge a conviction based on the weight of the evidence, a defendant must make an appropriate motion to adequately preserve the issue for appeal.
To preserve the issue of sufficiency of the evidence for review, a defendant in a criminal jury trial must move for a judgment of acquittal under N.D.R.Crim.P. 29, although no motion for a judgment of acquittal is necessary in a bench trial.
Grey Bear v. ND Dept. of Human Services , 2002 ND 139, 651 N.W.2d 611
(Joined in concurrence)
Highlight of the Opinion of the Court:
The statutory assignment granted to the Department of Human Services from a recipient of Medicaid benefits is for any third-party recovery a recipient may have for an injury, but is limited to the amount of medical costs provided by the Department for that injury.
A trial court does not abuse its discretion by refusing to delete an amendment to a judgment that was originally requested by the party seeking to delete the amendment.
A trial court lacks personal jurisdiction over a party when the party was neither served with a summons, nor made a voluntary general appearance.
Grey Bear v. ND Dept. of Human Services , 2002 ND 139, 651 N.W.2d 611
(Concurring)
Highlight of the Opinion of the Court:
The statutory assignment granted to the Department of Human Services from a recipient of Medicaid benefits is for any third-party recovery a recipient may have for an injury, but is limited to the amount of medical costs provided by the Department for that injury.
A trial court does not abuse its discretion by refusing to delete an amendment to a judgment that was originally requested by the party seeking to delete the amendment.
A trial court lacks personal jurisdiction over a party when the party was neither served with a summons, nor made a voluntary general appearance.
BeauLac v. BeauLac , 2002 ND 126, 649 N.W.2d 210
(Concurred in result)
Highlight of the Opinion of the Court:
To find a person in contempt of a prior court order, that person must have had actual notice or knowledge of that order.
Although the courts do not look favorably upon separating siblings in custody cases, a split custody award is not absolutely prohibited where the trial court finds that type of custody arrangement desirable under the circumstances.
Although a trial court should make specific factual findings and conclusions regarding the statutory presumption against awarding custody to a person who has perpetrated domestic violence, specific findings are not required when there is insufficient evidence of domestic violence to trigger the presumption.
Sjostrand v. ND Workers Comp. , 2002 ND 125, 649 N.W.2d 537
(Dissenting)
Highlight of the Opinion of the Court:
The Workers Compensation Bureau's termination of an injured worker's disability benefits for a false claim or false statement, without first providing an opportunity for an evidentiary hearing, does not violate the worker's right to due process of law.
The Bureau's findings on a false claim or false statement must be affirmed if they are supported by a preponderance of the evidence.
Nodak Mutual Ins. Co. v. Stegman , 2002 ND 113, 647 N.W.2d 133
(Concurred in result)
Highlight of the Opinion of the Court:
An acknowledgment of satisfaction of judgment must be notarized or otherwise witnessed and authenticated.
A person who does not regain consciousness after an accident and does not suffer conscious pain and suffering may bring a personal injury action against the tortfeasor for other damages, and therefore is an "injured person" under the hospital lien statute, N.D.C.C. 35-18-01.
A hospital lien attaches immediately upon rendering of medical services to a person injured in an accident.
A valid hospital lien has priority over claims of other creditors, and the hospital is entitled to collect the full amount of its lien from the tortfeasor's insurance without equitable allocation with other creditors' claims.
Piatz v. Austin Mutual Ins. Co. , 2002 ND 115, 646 N.W.2d 681
(Concurred in result)
Highlight of the Opinion of the Court:
When the record on appeal does not allow for a meaningful and intelligent review of an alleged error, we will decline to review the issue.
An insurance company does not waive its defenses regarding the reasonableness and necessity of continued treatment by initially paying no-fault benefits.
A witness need not be licensed in a particular field to be an expert, so long as the witness possesses the requisite knowledge, skill, experience, training, or education in that field.
Negaard v. Negaard , 2002 ND 70, 642 N.W.2d 916
(Concurring)
Highlight of the Opinion of the Court:
A move sought in good faith and to gain legitimate advantages for the custodial parent and the child must not be denied simply because visitation cannot continue in the existing pattern.
A custodial parent's past behavior is a relevant fact for the trial court to weigh in considering his or her motion to change a child's residence to another state.
Olson v. Bismarck Parks and Recreation District , 2002 ND 61, 642 N.W.2d 864
(Joined in concurrence)
Highlight of the Opinion of the Court:
The recreational use immunity statutes do not violate the state equal protection clause when applied to winter sledders injured on a hill owned, operated, and maintained by a public landowner.
Olson v. Bismarck Parks and Recreation District , 2002 ND 61, 642 N.W.2d 864
(Concurring)
Highlight of the Opinion of the Court:
The recreational use immunity statutes do not violate the state equal protection clause when applied to winter sledders injured on a hill owned, operated, and maintained by a public landowner.
Kelly v. Kelly , 2002 ND 37, 640 N.W.2d 38
(Concurred in result)
Highlight of the Opinion of the Court:
An order changing custody is a finding of fact, which will not be disturbed on appeal unless clearly erroneous.
When the previous custody award was based on the parties' stipulation, the trial court must consider all relevant evidence in making a considered and appropriate custody decision.
Knutson v. Knutson , 2002 ND 29, 639 N.W.2d 495
(Concurring and dissenting)
Highlight of the Opinion of the Court:
In considering whether a settlement agreement between divorcing parties should be enforced, the trial court should inquire: (1) whether the agreement is free from mistake, duress, menace, fraud, or undue influence; and (2) whether the agreement is unconscionable.
In the context of improperly coercing a spouse to sign a settlement agreement, undue influence is the improper use of power or trust in a way that deprives a person of free will and substitutes another's objective.
When the child support guidelines do not address a situation, as in the case of parents having joint physical custody of a child for equal amounts of time, the trial court must enter an order appropriate to the needs of the child and the ability of the parent to pay.
Bellefeuille v. Bellefeuille , 2001 ND 192, 636 N.W.2d 195
(Joined in concurrence)
Highlight of the Opinion of the Court:
A trial court does not abuse its discretion in denying a motion for relief from judgment, when the motion was made twenty-one years after the judgment was filed.
A trial court does not have jurisdiction to modify rehabilitative spousal support after the scheduled payments are completed, unless the trial court retains jurisdiction to do so within the decree.
Toni v. Toni , 636 N.W.2d 396 (N.D. 2001)
(Dissenting)
Highlight of the Opinion of the Court:
Agreements by divorcing parties to divest the trial court of jurisdiction to modify the amount and term of spousal support, which are adopted and incorporated into the divorce decree, are enforceable.
Dickson v. Dickson , 2001 ND 157, 634 N.W.2d 76
(Concurring and dissenting)
Highlight of the Opinion of the Court:
A custodial parent proposing a move to another state is not required to first seek employment outside the general area.
Although relevant to a custodial parent's proposed move to another state, a comparative cost-of-living analysis is not required.
In considering the location of family members on the noneconomic aspects of a proposed move, simply adding the number of relatives in each location and comparing the two numbers is an improper method for determining whether a move will enhance the noneconomic aspects of the lives of the custodial parent and the parties' child.
Stoppler v. Stoppler , 2001 ND 148, 633 N.W.2d 142
(Concurring and dissenting)
Highlight of the Opinion of the Court:
An award of custody is a finding of fact, which will not be disturbed on appeal unless clearly erroneous.
A trial court's determination on visitation is treated as a finding of fact.
To make an equitable distribution of marital property, the trial court must first determine the net worth of the parties' property.
A court cannot consider property division and spousal support separately in a vacuum, but must examine those issues together.
Moen v. Thomas , 2001 ND 110, 628 N.W.2d 325
(Concurring and dissenting)
Highlight of the Opinion of the Court:
The existence of an attorney-client relationship is ordinarily a question of fact.
James v. Griffin , 2001 ND 90, 626 N.W.2d 704
(Joined in dissent)
Highlight of the Opinion of the Court:
Once prior acquiescence of a boundary has been destroyed by a nonacquiescent possession, the 20-year period for establishing acquiescence begins running anew.
Praus v. Mack , 2001 ND 80, 626 N.W.2d 239
(Dissenting)
Highlight of the Opinion of the Court:
A trial court may grant parties on a side of litigation additional peremptory challenges if they have essentially adverse or antagonistic interests.
An expert witness may not be permitted to express an opinion if the facts disclosed by the evidence are such that it may be assumed the jury is capable of understanding them and arriving at its own conclusion.
A trial court's failure to instruct the jury about the violation of a safety regulation is not prejudicial error, if the complaining party had the opportunity to argue the theory to the jury and the instructions given allowed for a finding of negligence if the jury believed the complaining party's evidence.
Jury instructions on legal principles which illustrate how negligence law is applied in a specific situation are not indispensable if the parties are allowed to argue their theory of the case and the instructions given adequately inform the jury of the law.
One or more jurors in a civil case making an improper unauthorized visit to the scene of the accident is not prejudicial in the absence of a showing it influenced the verdict.
Minar v. Minar , 2001 ND 74, 625 N.W.2d 518
(Concurring and dissenting)
Highlight of the Opinion of the Court:
A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines in determining an obligor's child support obligation.
Under the child support guidelines, an obligor's ability to pay child support is not determined solely upon actual income, but also takes into account the obligor's earning capacity.
The child support guidelines must be applied using common sense and in consideration of the circumstances.
A court may delay payment of a portion of child support when the obligor's income is temporarily reduced.
Every child support order entered in this state must address health insurance coverage for the child.
Peters-Riemers v. Riemers , 2001 ND 62, 624 N.W.2d 83
(Concurring and dissenting)
Highlight of the Opinion of the Court:
Error may not be predicated upon the erroneous exclusion of evidence unless a substantial right of the party is affected.
Only a willful violation of a protection order results in penalty.
An issue not presented to the trial court will not be considered for the first time on appeal.
McPhee v. Tufty , 2001 ND 51, 623 N.W.2d 390
(Concurring and dissenting)
Highlight of the Opinion of the Court:
Whether the family car doctrine applies depends on the totality of the circumstances, and is a question of fact for the trier of fact to decide.
In deciding whether a vehicle was "used" by an insured when a third party was actually driving the insured's vehicle, courts analyze two factors: (1) whether the vehicle was under the supervision and control of the insured; and (2) whether the vehicle was being operated to serve a purpose of the insured.
Coverage of a newly acquired vehicle is automatic if notice is given within 30 days of its acquisition.
Disciplinary Board v. Hawkins , 2001 ND 55, 623 N.W.2d 431
(Joined in dissent)
Highlight of the Opinion of the Court:
An attorney who is disciplined in another jurisdiction is also subject to reciprocal discipline in North Dakota if admitted to practice law in North Dakota, regardless of whether the attorney currently is licensed to practice law in North Dakota.
Reciprocal discipline shall be identical in this state, unless the proceedings in the jurisdiction initiating the discipline lack due process or proof of misconduct, or unless identical punishment would result in grave injustice or the misconduct warrants substantially different discipline.
An attorney is not denied due process in disciplinary proceedings if there is adequate notice of the charges and an opportunity to be heard.
Imposing identical reciprocal discipline is not a grave injustice when an attorney is not licensed in North Dakota and does not intend to reapply for licensure.
Tibor v. Tibor , 2001 ND 43, 623 N.W.2d 12
(Joined in concurrence)
Highlight of the Opinion of the Court:
The presumptively correct child support guidelines are rebutted by a preponderance of the evidence establishing a noncustodial parent's reduced ability to provide support due to visitation travel expenses and a downward deviation from the guidelines is in the best interests of the children. Until the guidelines define a "reduced ability to pay," an affidavit from the noncustodial parent testifying as to net income and anticipated travel expenses is sufficient rebuttal evidence. A trial court may use its discretion to determine whether visitation travel expenses may be deducted directly from the child support payments or from the noncustodial parent's gross monthly income to calculate net income for the purpose of determining the appropriate child support obligation, as the guidelines do not provide a method for calculating the deviation.
The child support guidelines may be rebutted by evidence of travel expenses for only court-ordered visitations, not for discretionary visitation travel expenses.
Reiser v. Reiser , 2001 ND 6, 621 N.W.2d 348
(Concurring and dissenting)
Highlight of the Opinion of the Court:
In dividing the marital estate, fault causing deterioration of the marriage is a relevant factor under the Ruff-Fischer guidelines.
In awarding attorney fees in a divorce proceeding, fault is only relevant to the extent one party has unreasonably escalated the fees.
Disciplinary Board v. Howe , 2001 ND 7, 621 N.W.2d 361
(Concurring and dissenting)
Highlight of the Opinion of the Court:
A lawyer's conduct involving dishonesty, fraud, deceit, or misrepresentation generally results in suspension from the practice of law.
Owens v. State , 2001 ND 15, 621 N.W.2d 566
(Joined in dissent)
Highlight of the Opinion of the Court:
Post-conviction relief is denied for misuse of process when a petitioner presents issues the petitioner inexcusably failed to raise in a previous post-conviction hearing.
Davenport v. State , 2000 ND 218, 620 N.W.2d 164
(Joined in concurrence)
Highlight of the Opinion of the Court:
Although a trial court must inform a defendant of all direct consequences of a guilty plea, it need not advise a defendant of collateral consequences
The requirement for registration of a convicted sex offender is a collateral consequence.
Mayo v. Mayo , 2000 ND 204, 619 N.W.2d 631
(Dissenting)
Highlight of the Opinion of the Court:
In deciding a motion to modify custody, a trial court must consider whether there has been a significant change of circumstances and whether modification is necessary to serve the best interests of the child.
The credibility of witnesses, including experts, and the weight to be given their testimony are questions of fact subject to the clearly erroneous standard of review.
A trial court may question witnesses.
State v. Mora , 2000 ND 179, 617 N.W.2d 478
(Dissenting)
Highlight of the Opinion of the Court:
A defect in alleging prior convictions in an information is a harmless error when the defendant had actual knowledge of the convictions upon which the State relied to impose the mandatory sentence.
State v. Rubey , 2000 ND 119, 611 N.W.2d 888
(Joined in dissent)
Highlight of the Opinion of the Court:
The sex-offender-registration statute requires the offender to register even if a court has not advised the offender of the requirement.
"Address" as used in the sex-offender-registration statute includes an address used only for receiving mail, such as a post office box address.
Mikkelson v. ND Workers Comp. Bur. , 2000 ND 67, 609 N.W.2d 74
(Concurring and dissenting)
Highlight of the Opinion of the Court:
A preexisting condition need not be active at the time of a compensable work injury to invoke the 1997 version of the aggravation statute.
To establish entitlement to disability benefits, the claimant must ensure that the claimant's doctor verify disability in a filed report containing the information required by statute.
Kryzsko v. Ramsey Co. SSB , 2000 ND 43, 607 N.W.2d 237
(Dissenting)
Highlight of the Opinion of the Court:
A one-person household with total assets of more than $3,000.00 is not eligible for Medicaid benefits
An asset must be available to the applicant to be counted as an asset for purposes of Medicaid.
Support trusts are considered available to the beneficiary.
Principal Residential Mortgage v. Nash , 2000 ND 21, 606 N.W.2d 120
(Joined in concurrence)
Highlight of the Opinion of the Court:
Notice of a sheriff's sale must be served on a party who has been participating in a foreclosure action.
A judgment creditor is allowed to recover from the sheriff's sale proceeds only the amount of the debt and the costs of the action, including the costs of the judicial sale.
A judgment creditor is not entitled to collect attorney fees under a provision in a mortgage as part of the amount due or as costs under N.D.C.C. 32-19-10.
City of Minot v. Johnson , 1999 ND 241, 603 N.W.2d 485
(Concurring and dissenting)
Highlight of the Opinion of the Court:
An investigatory stop by a police officer must be supported by a reasonable and articulable suspicion a crime was or is about to be committed.
Observation of an illegal activity constitutes probable cause to arrest, a higher standard than a reasonable suspicion.
An area's reputation for criminal activity is an articulable fact on which an officer may rely, but standing alone is not a reasonable and articulable suspicion a crime was or is about to be committed.
Lemer a/k/a Hager v. Campbell , 1999 ND 223, 602 N.W.2d 686
(Concurring and dissenting)
Highlight of the Opinion of the Court:
The prevailing party for purposes of awarding costs and disbursements is based upon success upon the merits, not upon damages, and a party may be the prevailing party although recovering no award of damages.
The scope and substance of counsel's opening and closing arguments lie within the trial court's discretion.
Prejudice due to the probative force of evidence is not unfair prejudice.
Generally, a court should not disturb a jury's damages verdict unless it is so excessive or inadequate as to be without support in the evidence.
Bjerke v. ND Workers Comp. Bureau , 1999 ND 180, 599 N.W.2d 329
(Concurring and dissenting)
Highlight of the Opinion of the Court:
A disability due to a work-related injury qualifies a claimant for workers compensation benefits, while a disability due to a non-work related injury or medical condition does not qualify a claimant for benefits.
A pretermination notice of termination of workers compensation benefits must be sufficiently detailed to frame the precise issues, delineate the Bureau's theories and rationale for terminating benefits, and summarize the significant evidence supporting the Bureau's conclusions.
Schanilec v. Grand Forks Clinic, Ltd. , 1999 ND 165, 599 N.W.2d 253
(Concurring and dissenting)
Highlight of the Opinion of the Court:
The two-year statute of limitations for bringing a medical malpractice action does not begin to run in a misdiagnosis case until the plaintiff knows, or with reasonable diligence should know, of the injury, its cause, and the defendant's possible negligence.
Ketelsen v. Ketelsen , 1999 ND 148, 598 N.W.2d 185
(Dissenting)
Highlight of the Opinion of the Court:
A trial court cannot consider issues of property division and spousal support separately, in a vacuum, but must examine those issues together.
A trial court's modification of spousal support based upon changed circumstances is a finding of fact which will not be set aside on appeal unless it is clearly erroneous.
State v. Burr , 1999 ND 143, 598 N.W.2d 147
(Joined in dissent)
Highlight of the Opinion of the Court:
Requiring sexual offender registration by those convicted before adoption of the registration statute is not punishment and is not an ex post facto clause violation.
Saari v. ND Workers Compensation Bureau , 1999 ND 144, 598 N.W.2d 174
(Dissenting)
Highlight of the Opinion of the Court:
The right to workers compensation permanent partial impairment benefits vests on the date the impairment is determined, not on the date of injury or the date of maximum medical improvement.
Rights and obligations under the Workers Compensation Act are statutory, not contractual, in nature.
State v. Smith , 1999 ND 109, 595 N.W.2d 565
(Joined in dissent)
Highlight of the Opinion of the Court:
Improper closing arguments by the State do not necessarily affect a defendant's right to a fair trial when the district court gives a curative instruction.
Failure to give defendant's requested jury instruction is not error if the instruction given adequately advises the jury of the law.
An unobjected-to jury instruction on conspiracy is not reversible error.
Engebretson v. ND Workers Comp. Bureau , 1999 ND 112, 595 N.W.2d 312
(Concurring)
Highlight of the Opinion of the Court:
Under the 1995 law, a claimant can recover benefits if the injury was substantially aggravated or accelerated by the employment.
Speculative evidence is insufficient when tests could show whether claimant's employment substantially aggravated or accelerated an injury.
Bruns v. ND Workers Comp. , 1999 ND 116, 595 N.W.2d 298
(Concurring)
Highlight of the Opinion of the Court:
The Workers Compensation aggravation statute, N.D.C.C. 65-05-15 (1995), applies when a "new" work injury combines with and aggravates a preexisting condition.
It is not necessary to prove "permanent impairment" as defined in N.D.C.C. 65-01-02(26) (1995) to establish "active impairment" under the aggravation statute.
Goff v. Goff , 1999 ND 95, 593 N.W.2d 768
(Concurring and dissenting)
Highlight of the Opinion of the Court:
Under the first Stout factor, a trial court's relocation decision must give due weight to the possibility a proposed move will enhance both the economic and noneconomic aspects of the custodial family unit.
A restructured visitation schedule after a move need not provide an equal amount of visitation time.
Haff v. Hettich , 1999 ND 94, 593 N.W.2d 383
(Concurring and dissenting)
Highlight of the Opinion of the Court:
N.D.C.C. 32-03.2-02, modified comparative fault, changed common law tort principles to require apportionment of fault and damages between an original tortfeasor and a physician who negligently treats the original injury.
N.D.C.C. 32-03.2-02 does not violate substantive due process.
Under N.D.C.C. ch. 26.1-41, bodily injury arising out of the operation of a motor vehicle includes negligent medical treatment of personal injuries sustained in a motor vehicle accident.
Hill f/k/a Weber v. Weber , 1999 ND 74, 592 N.W.2d 585
(Concurred in result)
Highlight of the Opinion of the Court:
If the child's present environment may endanger the child's physical or emotional health or impair the child's emotional development, there is as a matter of law a material change in circumstances that warrants a change of custody.
Hawkinson v. Hawkinson , 1999 ND 58, 591 N.W.2d 144
(Concurring)
Highlight of the Opinion of the Court:
The fourth factor in Stout v. Stout is rephrased as: "The potential negative impact on the relationship between the noncustodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent's relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation."
Anderson v. Anderson , 1999 ND 57, 591 N.W.2d 138
(Dissenting)
Highlight of the Opinion of the Court:
N.D.C.C. 39-06-09 imputes the negligence of a minor permit driver to an injured passenger when that passenger is the parent who signed the minor driver's permit application.
Ramstad v. Biewer , 1999 ND 23, 589 N.W.2d 905
(Dissenting)
Highlight of the Opinion of the Court:
Modifying child custody is a two-step inquiry. First, there must have been a significant change of circumstance since the original custody determination. Second, the significant change of circumstance must compel or require, in the best interests of the child, a change of custody.
State v. Herrick , 1999 ND 1, 588 N.W.2d 847
(Concurring and dissenting)
Highlight of the Opinion of the Court:
When, prior to State v. Herrick, 1997 ND 155, 567 N.W.2d 336, a no-knock search warrant was issued on a per se basis under N.D.C.C. 19.1-03.1-32(3) because drugs were alleged to be present in the place to be searched, the good-faith exception to the exclusionary rule applies.
Lindell v. ND Workers Comp. Bureau , 1998 ND 174, 584 N.W.2d 520
(Joined in concurrence)
Highlight of the Opinion of the Court:
The disability verification requirements under N.D.C.C. 65-05-08.1(2)(a-d) (1995) apply to a claimant's initial request for disability benefits.
A physician's report under N.D.C.C. 65-05-08.1 (1995) includes a physician's formal correspondence with the Bureau, but not attached office notes or medical records.
Wilhelm v. Wilhelm , 1998 ND 140, 582 N.W.2d 6
(Concurring)
Highlight of the Opinion of the Court:
Trial court's valuation of in-kind income is not clearly erroneous where appellant presents no evidence to support her proposed valuation.
An equitable division of property need not be equal, but all of the real and personal property of the parties--including property accumulated prior to marriage or accumulated by one party through gift or inheritance--must be included in the marital estate before applying the Ruff-Fischer guidelines.
A trial court's decision regarding attorney fees will not be reversed absent an affirmative showing the trial court abused its discretion.
Fisher v. American Family Mutual Ins. Co. , 1998 ND 109, 579 N.W.2d 599
(Joined in concurrence)
Highlight of the Opinion of the Court:
Coverage for damage to the flooring in a home arising out of the insured floor finisher's operations was not excluded by exclusions b or j in the insured's commercial general liability policy.
Exclusions k and l excluded from coverage the cost of the finish and the sanding and finishing work performed by the insured on the homeowner's flooring.
When an insured has been abandoned by its insurer and enters into a Miller-Shugart settlement agreement, a failure to delineate between covered and non-covered damages does not render the Miller-Shugart agreement totally unenforceable.
State v. Burckhard , 1998 ND 121, 579 N.W.2d 194
(Joined in dissent)
Highlight of the Opinion of the Court:
Neither the Establishment Clause of the First Amendment nor N.D. Const. Art. I, Section 3, preclude the civil courts from assuming jurisdiction over the prosecution of theft charges against a Roman Catholic priest.
To withstand an Establishment Clause challenge, a statute must have a secular legislative purpose, its principle or primary effect must neither advance nor inhibit religion, and it must not foster an excessive entanglement with religion.
A motion to dismiss under N.D.R.Crim.P. 12(b) is not an appropriate vehicle to resolve fact questions, and all pleaded facts must be taken as true.
Gierke v. Gierke , 1998 ND 100, 578 N.W.2d 522
(Concurring and dissenting)
Highlight of the Opinion of the Court:
Absent service of notice of entry of a judgment or an order, the time for appeal begins to run when the appellant has actual knowledge of entry of the judgment or order evidenced by some affirmative action by the appellant in the record.
The failure to require a spousal support obligor to provide security for a spousal support obligation may be an abuse of discretion.
Nesseth v. Omlid , 1998 ND 51, 574 N.W.2d 848
(Concurring and dissenting)
Highlight of the Opinion of the Court:
Failure to object or request a curative instruction to improper arguments forfeits the right to raise the issue on appeal.
A trial court has an independent duty to intervene if improper comments affect a litigant's substantial rights.
A trial court's denial of a new trial on damages is not an abuse of discretion where the jury's award is supported by sufficient evidence.
A trial court must make a clear statement of the reasons for a denial of a new trial.
Hanneman v. Continental Western Ins. Co. , 1998 ND 46, 575 N.W.2d 445
(Joined in concurrence)
Highlight of the Opinion of the Court:
The term "borrow" in an insurance contract means receiving something from another for one's own use.
Insured was not covered by insurance policy because insured was not a borrower of car.
Insurer had no duty to defend insured because insured was released from personal liability. Nor was insurer required to pay insured's attorneys fees and expenses because coverage was found not to apply.
Dethloff v. Dethloff , 1998 ND 45, 574 N.W.2d 867
(Joined in dissent)
Highlight of the Opinion of the Court:
Entry of a default divorce judgment dividing property is an appropriate exercise of a trial court's inherent power to sanction where the trial court found the defendant had used delay and evasiveness as an intentional litigation strategy.
Sanctions must be reasonably proportionate to the procedural misconduct.
In a default divorce, a trial court must, absent an agreed settlement, require proof of the value of the marital estate and explain why the division is equitable.
Judicial Vacancy in Southeast Judicial District , 1998 ND 25, 574 N.W.2d 199
(Dissenting)
Highlight of the Opinion of the Court:
District Judgeship No. 1 in the Chamber at Jamestown ordered abolished.
Raboin v. N.D. Workers Compensation Bureau , 1997 ND 221, 571 N.W.2d 833
(Joined in dissent)
Highlight of the Opinion of the Court:
To impose personal liability on a corporate officer for an employer's failure to pay workers compensation premiums under N.D.C.C.  65-04-26.1, the officer must have supervisory control over the payment of premiums when payment is required.
Sposato v. Sposato , 1997 ND 207, 570 N.W.2d 212
(Joined in dissent)
Highlight of the Opinion of the Court:
Appeal from an order granting grandparent visitation in New York, the time period for which has expired, is dismissed as moot.
Absent a current request for visitation, the issue is not ripe for review.
Service Oil, Inc., v. Chabot , 1997 ND 74, 562 N.W.2d 571
(Joined in concurrence)
Highlight of the Opinion of the Court:
A motion denying summary judgment is not a ruling on the merits, and cannot be appealed. Although defendants stipulated to entry of judgment reserving the right to appeal the district court's ruling regarding liability, no such ruling has been made by the district court.
Austin v. Towne , 1997 ND 59, 560 N.W.2d 895
(Concurring)
Highlight of the Opinion of the Court:
Motion under N.D.R.Civ.P. 59(j) was timely. Defendant was not entitled to credit on his child support arrearage for social security dependency payments.
Sickler v. Kirkwood , 1997 ND 40, 560 N.W.2d 532
(Concurring)
Highlight of the Opinion of the Court:
The trial court abused its discretion in certifying the partial summary judgment as final under Rule 54(b), N.D.R.Civ.P.
Huesers v. Huesers , 1997 ND 33, 560 N.W.2d 219
(Concurring)
Highlight of the Opinion of the Court:
Wife's non-violent behavior cannot be considered as mitigating factors in applying the domestic violence presumption.
First American Bank West v. Berdahl , 556 N.W.2d 63 (N.D. 1996)
(Dissenting)
Highlight of the Opinion of the Court:
Under Section 34-02-11, N.D.C.C., absent a contrary agreement, everything an employee acquires by virtue of his or her employment, except compensation from the employer, belongs to the employer.
Swanson v. ND Workers Comp. , 553 N.W.2d 209 (N.D. 1996)
(Dissenting)
Highlight of the Opinion of the Court:
The claimant did not have standing to challenge the Workers Compensation Bureau's claimed lack of a peer review system. Under Section 65-05-07(3), N.D.C.C., only doctors or health care providers may appeal adverse Bureau decisions on 'reasonableness of fees and payment denials for unjustified treatments.'
Anderson v. ND Workers Comp. Bureau , 553 N.W.2d 496 (N.D. 1996)
(Concurring)
Highlight of the Opinion of the Court:
The workers compensation claimant did not know or have reason to know she had a compensable work-related injury until her symptoms of carpel tunnel syndrome significantly worsened ten years after first being diagnosed.
Wyatt v. Adams , 551 N.W.2d 775 (N.D. 1996)
(Dissenting)
Highlight of the Opinion of the Court:
The trial court's certification of the dismissal of a defendant as an appealable final order under Rule 54(b), N.D.R.Civ.P., was improvidently granted because the need for review could be mooted by future developments in the district court.
State v. McDonell , 550 N.W.2d 62 (N.D. 1996)
(Concurring)
Carlson v. Job Service , 548 N.W.2d 389 (N.D. 1996)
(Concurred in result)
Esselman v. Job Service ND , 548 N.W.2d 400 (N.D. 1996)
(Concurred in result)

Generated from Supreme Court Docket on 10/07/2008