Contracts

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.
Doeden v. Stubstad , 2008 ND 165,
A gift is a transfer of personal property voluntarily made without consideration and need not be in writing.
A valid gift requires an intention by the donor to give property to the donee, coupled with an actual or constructive delivery of the property to the donee and acceptance of the property by the donee.
If a written contract is ambiguous, extrinsic evidence may be considered to determine the parties' intent, and the terms of the contract and the parties' intent are questions of fact.
Sanders v. Gravel Products, Inc. , 2008 ND 161,
A person may waive contractual rights and privileges to which that person is legally entitled.
A claim that ERISA was violated because an employer failed to properly fund a retirement plan is within the concurrent jurisdiction of a state court.
A contract between one employee and an employer can be an employee benefit plan subject to ERISA.
The existence of an ERISA plan is a mixed question of fact and law.
Lucas v. Porter , 2008 ND 160,
The rule against splitting a cause of action is part of a rule of abatement and part of a rule of res judicata.
A pending action may be pleaded as a bar to a subsequent action where a final judgment in the prior action, pleaded in abatement, would support a plea of res judicata on the issues involved in the second action.
Claim preclusion prevents the relitigation of claims that were raised or could have been raised in prior actions between the same parties or their privies and means a valid existing final judgment from a court of competent jurisdiction is conclusive with regard to claims raised, or those that could have been raised and determined, as to the parties and their privies in all other actions.
Claim preclusion applies even if subsequent claims are based upon a different legal theory.
For proposes of claim preclusion, privity exists if a person is so identified in interest with another that the person represents the same legal right.
Lagerquist v. Stergo , 752 N.W.2d 168 (N.D. 2008)
Agency is generally a question of fact.
Agency is never presumed, and if an agency relationship is denied, the party alleging agency must establish it by clear and convincing evidence.
On appeal, a finding of agency is reviewed under the clearly erroneous standard.
An agency relationship is created when one person, called the principal, authorizes another, called the agent, to act for the principal in dealing with third persons. Agency is either actual or ostensible.
Agency cannot be proved by showing the declarations of the alleged agent.
Red River Wings, Inc. v. Hoot, Inc. , 2008 ND 117, 751 N.W.2d 206
Unambiguous contracts are particularly amenable to summary judgment.
Limited partners who participate in the business of the partnership or act in concert with the general partner are subject to the fiduciary duties of good faith, fair dealing, loyalty, and care applicable to partners in a general partnership.
Whether a person has breached a fiduciary duty is a question of fact.
Majority limited partners who control or act in concert with the general partner can be held personally liable to minority limited partners for damages for breach of fiduciary duties.
In the breach of a partnership contract by wrongful dissolution, the damages recoverable include the value of the profits the plaintiff otherwise would have received had the partnership not been wrongfully dissolved.
District courts are considered experts in determining what is a reasonable amount of attorney fees, and an award will not be reversed absent a clear abuse of discretion.
Whether interference with a contractual relationship is justified is a question of fact.
The doctrines of frustration of purpose and impossibility do not apply if the frustration or impossibility is caused by a party to the contract.
When an agreement does not specify an interest rate, the rate for prejudgment interest is 6 percent from the time the right to recover vested.
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.
Alerus Financial, N.A. v. Western State Bank , 2008 ND 104, 750 N.W.2d 412
In construing a trust agreement, the court's primary objective is to ascertain the settlor's intent.
A power of attorney is an instrument in writing authorizing another to act as one's agent, and the agent holding the power of attorney is the attorney-in-fact.
An agency relationship involves both a contractual and a fiduciary relationship, and the interpretation of an agent's authority is governed by the rules for construing contracts, except to the extent the fiduciary relationship requires a different rule.
Overboe v. Brodshaug , 2008 ND 112, 751 N.W.2d 177
A motion to vacate a default judgment is addressed to the sound discretion of the district court.
A statute of limitation does not defeat defensive recoupment, which must arise out of the same transaction that is the subject matter of the plaintiff's action and can only be used to reduce or avoid the plaintiff's recovery.
Interest before maturity is compensation for the use of money and is regulated by usury statutes, while interest allowed after maturity is considered compensation for damages for the wrongful detention of money and is not regulated by the usury statutes.
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.
Stockman Bank of Montana v. AGSCO, Inc. , 2008 ND 74, 747 N.W.2d 516
Where a party is erroneously ordered to pay another, the party is entitled to interest at the legal rate set by N.D.C.C. 47-14-05, when the judgment is later reversed.
Erickson v. Brown , 2008 ND 57, 747 N.W.2d 34
A complaint is construed in the light most favorable to the plaintiff and may not be dismissed for failure to state a claim unless it discloses with certainty the impossibility of proving a claim upon which relief can be granted.
A claim for fraud applies to parties to a contract while a claim for deceit applies where there is no contract between the parties.
A promise made without any intention of performing may be deceit.
Legal issues entitling a party to a jury trial are tried to a jury before disposition of equitable issues triable to the court, and whenever the issues are so interrelated that a decision in the nonjury portion might affect the decision of the jury portion, the jury portion must be tried first.
There is no implied covenant of good faith and fair dealing in the employment context.
Nonprejudicial errors constitute harmless error and are not grounds for reversal.
Langer v. Bartholomay , 2008 ND 40, 745 N.W.2d 649
Custom and usage may be given effect as part of a written contract if the agreement is silent or ambiguous on a point and there is a well-established custom concerning a subject so that the parties may be presumed to have acted with reference to the custom.
Time is generally of the essence in exercising an option, and the optionee must perform the terms of the option within the specified time and upon the terms and conditions provided in the agreement.
There are many different methods that may be used to prove damages for lost profits resulting from a breach of contract, but whichever method is used must be reasonably accurate and provide a fair basis for calculating the damages.
The injured party can recover lost profits resulting from a breach of contract only to the extent the evidence he produces affords a sufficient basis for estimating with reasonable certainty the amount of profits prevented by the breach.
Hsu v. Marian Manor Apartments , 2007 ND 205, 743 N.W.2d 672
A contract providing for the lease of a clinic owned by a nursing home to a licensed physician, which named the physician lessee using the suffix "M.D.," and which provided that the lessee shall obtain and maintain all necessary licenses to operate a clinic, unambiguously required the physician to maintain a license to practice medicine.
Revocation of a physician's license to practice medicine is a breach of a lease unambiguously requiring the physician to maintain a license to practice medicine entitling the lessor to refuse to renew the lease.
Hendricks Prop. Mgmt. Corp. v. Birchwood Prop. Ltd. Partnership , 2007 ND 181, 741 N.W.2d 461
The interpretation of an agency agreement is governed by laws for construing contracts except to the extent the agent's fiduciary relationship with the principal requires a special rule, or the parties agree otherwise.
A district court's findings of fact and conclusions of law must be stated with sufficient specificity to provide reviewing courts with a clear understanding of the district court's decision, and a district court's findings of fact are adequate if the reviewing court is able to understand the factual basis for the district court's decision.
A liquidated damage clause is valid if the damages stemming from a breach are impractical or extremely difficult to estimate when the contract was entered, the parties reasonably endeavored to fix their damages, and the amount stipulated bears a reasonable relation to the probable damages and is not disproportionate to any damages reasonably anticipated.
Face-to-face negotiations are not necessary to uphold a liquidated damage clause.
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.
Mountrail Bethel Home v. Lovdahl , 2007 ND 175, 742 N.W.2d 839
Judgment finding enforceable contract did not exist is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Peterson v. Dakota Molding, Inc. , 2007 ND 144, 738 N.W.2d 501
In a garnishment proceeding, where a garnishee denies liability, the plaintiff may move the court for leave to file a supplemental complaint making the garnishee a party to the action, and setting forth the facts upon which the plaintiff claims to charge the garnishee. If probable cause is shown, the motion shall be granted.
The question whether probable cause has been shown, so as to require leave to file a supplemental complaint making a garnishee a party to an action, depends on whether the evidence shows probable grounds for believing that the garnishee might be held liable.
A term in an insurance policy should be construed to mean what a reasonable person in the position of the insured would think it meant. Limitations or exclusions from broad coverage must be clear and explicit. When the language of an insurance policy is clear and explicit, the language should not be strained in order to impose liability on the insurer.
Superior, Inc. v. Behlen Mfg. , 2007 ND 141, 738 N.W.2d 19
A contractual right to indemnification may be implied based on the special nature of the relationship between the parties, or when there are unique factors demonstrating that the parties intended the would-be indemnitor to bear the ultimate responsibility for a certain matter.
Implied contractual indemnity is an equitable remedy that is available only if a party does not have an adequate remedy at law.
Under the Uniform Commercial Code, a buyer may seek consequential damages from the seller when it incurs liability to a third party as a result of the use or resale of the seller's product.
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 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.
Rydell GM Auto Center v. Johnson , 2007 ND 75, 734 N.W.2d 342
An order denying a party's request to vacate default judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4).
D.G.L. Trading Corp. v. Reis , 2007 ND 88, 732 N.W.2d 393
The general rule that questions not raised before the district court will not be considered on appeal cannot be applied so narrowly as to affirm erroneous or incomplete applications of law in favor of judicial expediency.
U.C.C. provisions allow parties to make separate contracts regarding the return terms and risk of loss.
WFND, LLC v. Fargo Marc, LLC , 2007 ND 67, 730 N.W.2d 841
A motion to amend a complaint under N.D.R.Civ.P. 15(a) and a motion for voluntary dismissal under N.D.R.Civ.P. 41(a)(2) lie within the sound discretion of the district court and will not be reversed on appeal absent an abuse of discretion.
A breach of contract is the nonperformance of a contractual duty when it is due, and the burden of proving the elements of a breach of contract is on the party asserting the breach.
Mixing principles of tort and contract law and using tort terminology to describe a breach of contract is improper.
Fraud applies when there is a contract between the parties and deceit applies when there is no contract between the parties.
An intent to defraud usually is not susceptible of direct proof, and can be established by circumstantial evidence.
The award of damages will be sustained on appeal if it is within the range of the evidence presented to the trier of fact.
A district court is not required to accept the undisputed testimony of an expert witness.
A written contract may be modified by an executed oral agreement.
The parol evidence rule does not preclude proof of the existence of a separate oral stipulation or agreement concerning any matter on which the written contract is silent, and which is not inconsistent with its terms.
Successful litigants are not allowed to recover attorney fees unless authorized by statute or by contract.
When opposing parties each prevail on some of their claims, there is no single prevailing party for whom disbursements may be taxed.
Disbursements listed in N.D.C.C. 28-26-06 may be awarded as discretionary costs under N.D.C.C. 28-26-10.
Vogel, Weir, Hunke, and McCormick v. Serbus , 2007 ND 65, 734 N.W.2d 342
Contract dispute judgment summarily affirmed under N.D.R.App.P. 35.1(a)(1).
Gratech Co., Ltd. v. Wold Engineering, P.C. , 2007 ND 46, 729 N.W.2d 326
An arbitration award is vacated only if it is completely irrational, in that the decision is either mistaken on its face or so mistaken as to result in real injustice or constructive fraud. An arbitrator's mistake as to fact or law is not a sufficient ground for overturning an arbitration award.
A successful litigant is not entitled to attorney's fees unless they are expressly authorized by statute or by agreement of the parties.
When no evidence is introduced and when the district court makes no specific findings of fact to support its determination on attorney's fees, it is impossible for the Supreme Court on appeal to appropriately review the decision of the district court.
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.
Stockman Bank of Montana v. AGSCO, Inc. , 2007 ND 26, 728 N.W.2d 142
A principal and its duly authorized agent may file an agricultural supplier's lien for agricultural supplies furnished to an agricultural producer.
An agricultural supplier's lien filed as a security interest created by contract to secure money advanced or loaned for any purposes is not effective to secure a priority over crop liens.
An agricultural supplier's lien cannot be obtained or enforced unless there has been substantial compliance with the statutory requirements for the lien.
An agricultural supplier may be entitled to a lien on crops if the agricultural supplier furnishes supplies to the producer within 120 days before the lien was filed and if the supplies were applied to crops in North Dakota.
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.
Griggs v. Fisher , 2006 ND 255, 725 N.W.2d 201
Before addressing the issue of sufficiency of the evidence to support a jury verdict, a losing party must move for judgment as a matter of law under N.D.R.Civ.P. 50 or for a new trial under N.D.R.Civ.P. 59.
Industrial Commission v. Noack , 2006 ND 195, 721 N.W.2d 698
An appellant has the duty to provide a transcript sufficient to allow a meaningful and intelligent review of the alleged errors.
To justify rescission of a contract, a mutual mistake must relate to the subject matter and essential elements of the contract, and not merely be collateral to it.
A party seeking to rescind a contract must offer to restore to the other party everything of value which the rescinding party received from the other party under the contract.
Peoples State Bk. of Truman v. Molstad Excavating , 2006 ND 183, 721 N.W.2d 43
Part of the law of the case doctrine provides that the orderly functioning of the judicial process requires that judges of coordinate jurisdiction honor one another's orders and revisit them only in special circumstances.
The law of the case is not violated and reconsideration of prior orders is proper if the initial ruling was made on an inadequate record or was designed to be preliminary or tentative.
Construction of a written contract to determine its legal effect is a question of law, and on appeal this Court will independently examine and construe the contract to determine if the trial court erred in its interpretation.
To enforce a contract between two others, a third party must have been intended by the contracting parties to be benefited by the contract.
Mountrail Bethel Home v. Lovdahl , 2006 ND 180, 720 N.W.2d 630
A district court must make findings on issues a party raises and presents evidence on.
Weinreis v. Hill , 2006 ND 170, 719 N.W.2d 354
A principal is bound by acts of his agent under a merely ostensible authority to those persons only who in good faith and without ordinary negligence have incurred a liability or parted with value upon the faith thereof.
A district court's determination of negligence is a finding of fact which will not be set aside on appeal unless it is clearly erroneous.
SPW Associates v. Anderson , 2006 ND 159, 718 N.W.2d 580
Principles of partnership law apply to a joint venture.
A joint venturer is an agent of the joint venture and has authority to grant a security interest in joint venture property.
Johnson v. Gehringer , 2006 ND 157, 717 N.W.2d 920
A district court's finding of contempt will not be overturned unless there is a clear abuse of discretion.
The interpretation of an amended judgment is a question of law which is fully reviewable on appeal.
Farmers Insurance Exchange v. Schirado , 2006 ND 141, 717 N.W.2d 576
A plaintiff may establish the elements of a claim by circumstantial evidence.
Direct evidence of causation is not required if other evidence is sufficient to permit an inference that the defendant's conduct caused the plaintiff's damages.
Tarnavsky v. Tarnavsky , 2006 ND 124, 717 N.W.2d 534
A case is remanded to the district court with directions to vacate an order confirming a sheriff's sale when the appellee concedes on appeal that errors occurred in the sheriff's sale and consents to vacation of the order confirming the sale.
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.
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.
City of Bismarck v. Mariner Construction, Inc. , 2006 ND 108, 714 N.W.2d 484
The interpretation of a written contract to determine its legal effect is a question of law, and a court must initially determine if the contract is ambiguous.
If a contract is unambiguous, the court interprets the meaning of the contract as a matter of law and the trier of fact determines if the contract, as construed by the court, has been breached.
If a contract is ambiguous, the trier of fact may consider extrinsic evidence about the parties' intent to determine the meaning of the contract and the trier of fact then decides whether the parties have breached the contract.
If a contract is uncertain, the language of the contract is interpreted most strongly against the party who caused the uncertainty; however, for contracts between a public entity and a private party, it is presumed the uncertainty was caused by the private party.
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.
Nesvig v. Nesvig , 2006 ND 66, 712 N.W.2d 299
In deciding whether to compel testimony of an unretained expert, the court should consider: whether the expert is being called to testify about facts of the case or to give opinion testimony; the difference between testifying to a previously formed or expressed opinion and forming a new one; whether the witness is a unique expert; the likelihood a comparable witness will willingly testify; and the degree the witness is oppressed by having to continually testify.
The district court does not abuse its discretion by failing to sequester an expert witness from observing trial testimony where the expert's presence is essential to presentation of the party's cause and no prejudice results.
Preference Personnel, Inc. v. Peterson , 2006 ND 35, 710 N.W.2d 383
The Department of Labor may not issue retroactive licenses for employment agencies.
If public policy considerations require employment agencies to undergo extensive licensing requirements before being allowed to legally conduct business in this State, it follows that it is against the public policy of this State to enforce a contract between an individual and an unlicensed employment agency.
Edward H. Schwartz Const. Inc. v. Driessen , 2006 ND 15, 709 N.W.2d 733
The existence of an oral contract and the extent of its terms are questions of fact that are reviewed under the clearly erroneous standard of review.
A trial court's choice between two permissible views of the weight of the evidence is not clearly erroneous, and simply because an appellate court may have viewed the evidence differently does not entitle it to reverse the trial court.
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.
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.
Farmers Union Mutual Ins. Co. v. Decker , 2005 ND 173, 704 N.W.2d 857
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.
Case Credit Corp. v. Oppegard's Inc. , 2005 ND 141, 701 N.W.2d 891
Jury instructions do not need to include a definition of a commonly understood word when such a definition has not been requested. Giving a definition of a commonly understood word is a matter of the trial court's discretion.
A jury instruction on issues not raised at trial is erroneous but only constitutes reversible error if the instruction was intended to mislead the jury. A special damages provision controls over a general damages provision.
Weinreis v. Hill , 2005 ND 127, 700 N.W.2d 692
A district court must consider the apparent or ostensible authority of an individual exercising the functions of a corporate officer to bind the corporation to an agreement.
Oliver-Mercer Electric Coop. v. Davis , 2005 ND 99, 696 N.W.2d 924
When a secured creditor who fails to give proper notice seeks a deficiency judgment, the fair market value of the collateral is presumed to be equal to the debt.
A secured creditor who fails to properly notify the debtor of a sale of collateral must provide credible evidence from which the trial court can determine the fair market value of the collateral.
A secured creditor's failure to provide credible evidence bars recovery of a deficiency judgment.
Choice Financial Group v. Schellpfeffer , 2005 ND 90, 696 N.W.2d 504
Where partial summary judgment is rendered for only part of the damages sought by the plaintiff and consideration of further damages is reserved for a later date, the judgment is neither final nor on an entire claim, and there can be no certification of the partial summary judgment as final under N.D.R.Civ.P. 54(b).
Glasow v. E.I. Dupont De Nemours and Company , 2005 ND 94, 696 N.W.2d 531
Rule 23(l), N.D.R.Civ.P., governs the dismissal of all class actions, regardless of whether a motion to certify the class is filed.
H-T Enterprises v. Antelope Creek Bison Ranch , 2005 ND 71, 694 N.W.2d 691
The purpose of the no-counterclaim provision in the eviction statute is to get a speedy determination of possession.
A defendant in an eviction action may show the character of the parties' possessory rights, evidence of a strained relationship having a bearing on whether a material breach has occurred, and affirmative defenses and counterclaims.
Home of Economy v. Burlington Northern , 2005 ND 74, 694 N.W.2d 840
The Interstate Commerce Commission Termination Act of 1995 does not preempt state jurisdiction over railroad grade crossings.
Buri v. Ramsey , 2005 ND 65, 693 N.W.2d 619
A trial court's determination about whether a conversion has been committed is a finding of fact which will not be overturned on appeal unless it is clearly erroneous.
The injured party in a conversion dispute has the option of choosing either N.D.C.C. 32-03-23(1) or N.D.C.C. 32-03-23(2) to determine the value of the converted property.
Recovery for specific costs incurred to recover the property are to be determined under N.D.C.C. 32-03-23(3).
Lochthowe v. C.F. Peterson Estate , 2005 ND 40, 692 N.W.2d 120
A third party who derives gain from an agreement between others has not necessarily been unjustly enriched, unless the third party has participated somehow in the transaction through which the benefit is obtained.
The clearly erroneous standard applies to the review of a district court's findings on a claim of unlawful interference with a business relationship.
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.
Riverside Park Condominiums Unit Owners Association v. Lucas , 2005 ND 26, 691 N.W.2d 862
Actions of a condominium's board of directors are reviewed under the business-judgment rule.
The power of a condominium's governing body to make rules, regulations, or amendments to the declaration or bylaws is limited by a determination of whether the action is unreasonable, arbitrary, capricious, or discriminatory.
The reasonableness of a condominium use restriction is determined by reference to the common interest development as a whole.
A trial court's decision to grant or deny a request for a declaratory judgment will not be set aside unless the court has abused its discretion.
The district court has broad discretion in imposing sanctions for discovery violations, and its decision will be reversed only upon a showing of an abuse of discretion.
The trial court may impose an appropriate sanction for filing a motion for an improper purpose.
A party waives an issue by not providing supporting argument, and without supportive reasoning or citations to relevant authorities, an argument is without merit.
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.
Engwicht v. Lako , 2004 ND 219, 691 N.W.2d 192
The district court's interpretation of an oral contract for well-drilling services is not clearly erroneous, and the judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
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.
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.
Dietz v. Kautzman , 2004 ND 164, 686 N.W.2d 110
An order or judgment awarding attorney fees and costs as a discovery sanction is ordinarily interlocutory and not appealable, but it is appealable when accompanied by a finding of contempt.
A district court has a broad spectrum of available sanctions for discovery violations, and any sanctions imposed will not be set aside on appeal unless the district court abused its discretion.
Smith Enterprises v. In-Touch Phone Cards , 2004 ND 169, 685 N.W.2d 741
A determination of the terms of an oral contract is a question of fact and will be reversed on appeal only if clearly erroneous.
To prevail on a claim of unlawful interference with business, a plaintiff must prove: (1) the existence of a valid business relationship or expectancy; (2) knowledge by the interferer of the relationship or expectancy; (3) an independently tortious or otherwise unlawful act of interference by the interferer; (4) proof the interference caused the harm sustained; and (5) actual damages to the party whose relationship or expectancy was disrupted.
Ficek v. Morken , 2004 ND 158, 685 N.W.2d 98
The public duty doctrine, that there is no enforceable duty in tort when a statute or common law imposes upon a public entity a duty to the public at large rather than to a particular class of individuals, is incompatible with North Dakota law.
Ag Acceptance Corp. v. Alexander Farms, Inc. , 2004 ND 143, 688 N.W.2d 402
Judgment in collection action summarily affirmed under N.D.R.App.P. 35.1(a)(6).
Fladeland v. Gudbranson , 2004 ND 118, 681 N.W.2d 431
An agreement for the sale of real property is invalid unless the same or some note or memorandum thereof is in writing and subscribed by the party to be charged, or by his agent.
Absent a written contract or agreement for the sale of real property, a court may compel the specific performance of any agreement for the sale of real property in case of part performance thereof.
Part performance of an alleged oral contract must be consistent only with the existence of the alleged oral contract.
Reishus v. Thompson , 2004 ND 102, 688 N.W.2d 402
A trial court judgment dismissing a negligence action is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
All New Gutter Service, Inc. v. Dusek , 2004 ND 91, 688 N.W.2d 402
Judgment finding no oral contract after a bench trial is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
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.
Oliver-Mercer Electric Coop. v. Davis , 2004 ND 86, 678 N.W.2d 757
The right to a trial by jury is determined by the character of the issues as framed by the complaint or appearing on the face of the pleadings.
A secured creditor must give reasonable notice of the time and place of a sale of collateral and must conduct the sale in a commercially reasonable manner.
When a secured creditor who failed to give proper notice seeks a deficiency judgment, the fair market value of the collateral is presumed to be equal to the debt.
For purposes of a deficiency judgment, the fair market value of the collateral must be determined at the time of the sale. A secured creditor who failed to properly notify the debtor of a sale of collateral must provide credible evidence from which the trial court can determine the fair market value of the collateral. If a secured creditor has failed to provide the debtor proper notice of the sale of collateral, the selling price of the collateral is not credible evidence.
Every aspect of a sale of collateral must be commercially reasonable, including the method, manner, time, place, and terms.
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.
Danzl v. Heidinger , 2004 ND 74, 677 N.W.2d 924
Absent statutory or contractual authority, each party to a lawsuit bears the party's own attorney fees.
Peterson v. ND University System , 2004 ND 82, 678 N.W.2d 163
A writ of mandamus is not the appropriate avenue for judicial review of State Board of Higher Education decisions to dismiss tenured faculty members because tenure rights are contractual and not statutory in nature.
The proper standard of judicial review of a substantive State Board of Higher Education decision to dismiss a tenured faculty member for cause is whether a reasoning mind could have reasonably determined that the factual conclusions were supported by clear and convincing evidence.
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.
Vandall v. Trinity Hospitals , 2004 ND 47, 676 N.W.2d 88
There is no common law tort for retaliatory discharge in North Dakota because of the statute.
A 180-day statute of limitations governs a claim for retaliatory discharge.
An individual who merely provides facts concerning the conduct of another to an administrative board possessing the authority to issue charges is not liable for wrongful use of civil proceedings before an administrative board.
In a claim for intentional infliction of emotional distress, the conduct must be so extreme in degree as to be beyond all possible bounds of decency and utterly intolerable in a civilized society.
A trial court may award attorneys' fees to a prevailing party in an action for retaliatory discharge brought under the statute.
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.
Nesvig v. Nesvig , 2004 ND 37, 676 N.W.2d 73
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.
Swancy v. Tjon , 2004 ND 35, 676 N.W.2d 813
Judgment dismissing tort claims after a bench trial is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Pierce v. B.P.O. of Elks , 2004 ND 26, 673 N.W.2d 914
Whether a lessee has surrendered a lease by operation of law or made a good-faith attempt to mitigate damages for the lessor's breach of the lease is a question of fact not subject to disposition by summary judgment.
Fargo Glass and Paint v. Randall , 2004 ND 4, 673 N.W.2d 261
Under N.D.R.Civ.P. 60(a), there is no clerical mistake in a judgment if it accurately reflects uncontroverted evidence in the proceedings.
Rule 60(a) cannot be used to introduce a new party to an action.
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.
Akerlind v. Buck , 2003 ND 169, 671 N.W.2d 256
The credibility of witnesses, including expert witnesses, and the weight to be given their testimony, are questions for the trier of fact.
A partnership agreement controls whether partners are entitled to compensation for services provided to the partnership.
A partner breaches a fiduciary duty if the partner fails to keep fiduciary property separate and distinct and uses partnership property for the partner's personal benefit.
Whether a person has breached a fiduciary duty is a finding of fact.
Ruggles v. Sabe , 2003 ND 159, 670 N.W.2d 356
A vested remainderman has an action for waste against a life tenant.
Deptuch v. Lindberg , 2003 ND 142, 670 N.W.2d 359
Judgment upon jury verdict in a contract dispute is summarily affirmed under 35.1(a)(3).
Lamb v. Riemers , 2003 ND 148, 669 N.W.2d 113
Unless a contract specifically provides otherwise, the seller may retain earnest money only if the buyer breaches the agreement.
John T. Jones Construction Co. v. City of Grand Forks , 2003 ND 109, 665 N.W.2d 698
Parties to an arbitration agreement cannot contractually expand the scope of judicial review of an arbitration award beyond that provided by the Uniform Arbitration Act.
The Uniform Arbitration Act does not authorize Supreme Court review of an arbitration award that has not been subject to review in the district court.
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).
Tarnavsky v. McKenzie Co. Grazing Association , 2003 ND 117, 665 N.W.2d 18
Statutes of limitation ordinarily begin to run from the commission of the wrongful act giving rise to the cause of action.
The discovery rule postpones the accrual of a claim until the plaintiff knew or with the exercise of reasonable diligence should have known the wrongful act and its resulting injury, and an objective standard is used for determining knowledge of a potential claim under the discovery rule.
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.
Marcotte's Builders Supply v. Strobel , 2003 ND 93, 664 N.W.2d 516
Judgment in a home construction contract dispute is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Trinity Health v. North Central Emergency Services , 2003 ND 86, 662 N.W.2d 280
Whether a contract has been substantially performed and whether a party has breached a contract are questions of fact.
When there has been a motion for summary judgment, but no cross-motion, the court already is engaged in determining if a genuine issue of material fact exists, the parties have been given an opportunity to present evidence to support or refute the request, and summary judgment may be rendered in favor of the party opposing the motion without a formal cross- motion.
Northern Plains Alliance, L.L.C. v. Mitzel , 2003 ND 91, 663 N.W.2d 169
When parties enter an agreement for the sale of property which is expressly subject to a right of first refusal by a third party, the contract is conditional and becomes binding on the seller only if the right of first refusal is not exercised.
Acceptance of an option for the sale of land within the time allowed and according to its terms converts the option into a binding executory contract of sale.
Spagnolia v. Monasky , 2003 ND 65, 660 N.W.2d 223
A contract is ambiguous when rational arguments can be made for different interpretations.
The intention of the parties to a contract must be gathered from the entire instrument and not from isolated clauses.
An implied trust, whether resulting or constructive, must be established by clear and convincing evidence.
An appellate court is not obligated to engage in unassisted searches of the record for evidence to support a litigant's position.
An appealing party has the burden of establishing not only that the trial court erred but that such error was highly prejudicial to his cause.
Argabright v. Rodgers , 2003 ND 59, 659 N.W.2d 369
An ostensible agency rests upon conduct or communications of the principal which, reasonably interpreted, causes a third person to believe the agent has authority to act for and on behalf of the principal.
If an agency relationship is denied, the party alleging agency must establish it by clear and convincing evidence.
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.
Lee v. Owan , 2003 ND 13, 660 N.W.2d 232
A trial court judgment finding the terms of an oral contract were definite and the parties' performance was sufficient to remove the contract from the statute of frauds is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Hilton v. ND Education Association , 2002 ND 209, 655 N.W.2d 60
Counselors who were certified under N.D.C.C. ch. 15-36 and who did not devote more than fifty percent of their time to administration duties were teachers under N.D.C.C. ch. 15-38.1.
In action for intentional interference with contract, defendants act with justification if they assert a lawful object which they had a right to assert.
Larson v. Norkot Manufacturing , 2002 ND 175, 653 N.W.2d 33
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.
Argenziano v. State , 2002 ND 158, 655 N.W.2d 84
Summary judgment dismissing a breach of contract claim is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (6).
Bender v. Beverly Anne, Inc. , 2002 ND 146, 651 N.W.2d 642
Under N.D.R.Civ.P. 60(a), errors in a judgment or order arising from oversights or omission may be corrected by the court at any time of its own initiative or on the motion of any party.
While a prior judgment may be set aside upon a N.D.R.Civ.P. 60(b) motion for relief from a judgment, N.D.R.Civ.P. 60(b) may not be used to impose additional affirmative relief in addition to the relief contained in the prior judgment.
Abel v. Allen , 2002 ND 147, 651 N.W.2d 635
A cause of action accrues when the right to commence it comes into existence, when it can be brought in a court of law without being subject to dismissal for failure to state a claim.
A cause of action for breach of a lease accrues upon the first breach.
Meide v. Stenehjem , 2002 ND 128, 649 N.W.2d 532
When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone if possible.
Extrinsic evidence is considered only if the language of the agreement is ambiguous and the parties' intentions cannot be determined from the writing alone.
Matrix Properties Corp. v. JCG Investments , 2002 ND 99, 647 N.W.2d 706
A judgment quieting title to real property and an order denying a motion to alter, amend, or vacate the judgment are summarily affirmed under N.D.R.App.P. 35.1(a)(1).
The Supreme Court may award attorneys fees under N.D.R.App.P. 38, when the appeal is frivolous.
Matrix v. TAG Investments , 2002 ND 86, 644 N.W.2d 601
As part of the enforcement of a judgment for specific performance of the conveyance of land, a purchaser may proceed by ancillary motion after the trial court has ordered the transfer of the land under N.D.R.Civ.P. 70 to recover costs, attorney fees, and damages for the seller's delay in conveying land.
Uren v. Dakota Dust-Tex, Inc. , 2002 ND 81, 643 N.W.2d 678
Absent an express agreement to the contrary, a tenant is an implied co-insured under the landlord's property insurance policy, and the insurer may not seek subrogation against the tenant for damages caused by the tenant's negligence.
Ordinary negligence is not a "willful act or misconduct" under a lease provision requiring the tenant to continue paying rent if the building is destroyed by the "willful act or misconduct" of the tenant.
A landlord who receives insurance payments exceeding the actual value of the damages allegedly caused by the tenant's negligence cannot recover against the tenant for "uninsured losses."
Attorney travel expenses to attend a pretrial product inspection are not recoverable as costs or disbursements.
Wilson v. Velva Rental Housing, Inc. , 2002 ND 74, 647 N.W.2d 706
Summary judgment dismissing contract claim is summarily affirmed under N.D.R.App.P. 35.1(a)(6).
Olander Contracting v. Gail Wachter Investments , 2002 ND 65, 643 N.W.2d 29
Indemnification is a remedy allowing a party to recover reimbursement from another for the discharge of a liability that, as between them, should have been discharged by the other.
The district court may enter summary judgment on its own motion as long as the losing party was on notice it had to come forward with all its evidence.
An appealing party has the burden of establishing that the trial court erred and that the error was highly prejudicial to the appellant's cause.
Without supportive reasoning or citations to relevant authorities, an argument is without merit.
A party waives an issue by not providing supporting argument.
A trial court has broad discretion over the nature and scope of written questions submitted to the jury, and appellate review is limited to determining whether the trial court abused its discretion.
North Dakota's prompt payment statute, N.D.C.C. ch. 13-01.1, does not apply while there is a reasonable dispute between a governmental agency and a business over the amount due or over compliance with a contract for property or services.
BTA Oil Producers v. MDU Resources Group , 2002 ND 55, 642 N.W.2d 873
When an impoverishment results from a valid contractual arrangement made by a party, the result is not contrary to equity and there has been no unjust enrichment.
Unjust enrichment applies only in the absence of a contract between the parties, and there can be no implied-in-law contract where there is an express contract between the parties relative to the same subject matter.
Affidavits containing conclusory statements unsupported by specific facts are insufficient to raise a genuine issue of material fact precluding summary judgment.
When a party opposing summary judgment fails to invoke N.D.R.Civ.P. 56(f), the possibility that further discovery will yield favorable evidence raising an issue of material fact is not a ground to deny the motion.
Whether an agreement is a contract for sale governed by the Uniform Commercial Code is not decided by the labels used by the parties to characterize the transaction, but by the substance of the transaction and intent of the parties.
The filing of a motion to intervene, accompanied by a proper pleading, begins an action for purposes of the statute of limitations.
Klagues v. Maintenance Engineering , 2002 ND 59, 643 N.W.2d 45
The class-action "joint and common interest" generally exists if one class member's failure to collect would increase the recovery of the remaining members, or if the defendant's total liability does not depend on how the recovery of the claim is distributed among the class members. A joint and common interest is not the same as a common question of law or fact.
The class-action "incompatible standards" generally occur when the party opposing the class certification would be unable to comply with one judgment without violating the terms of another judgment.
If claims or defenses of members of the proposed class are based on unique facts or individual relationships with the opposing party, class-action certification is inappropriate.
Wahl v. Country Mutual Ins. Co. , 2002 ND 42, 640 N.W.2d 689
The statutory requirement that an insurer give at least ten days notice of cancellation of a commercial insurance policy during the term of the policy does not require an insurer to provide notice of cancellation when the policy term expires.
The statutory requirement that an insurer give at least thirty days notice of intent not to renew a commercial insurance policy does not require an insurer to provide a notice of nonrewal when a policy term expires and the insured has not paid a renewal premium.
Dalan v. Paracelsus Healthcare Corp. , 2002 ND 46, 640 N.W.2d 726
When a party fails to establish the existence of a factual dispute on an essential element of his claim, on which he will bear the burden of proof at trial, summary judgment is appropriate.
A claim for unjust enrichment does not apply when an express contract exists.
Bender v. Aviko USA L.L.C. , 2002 ND 13, 638 N.W.2d 545
In opposing a summary judgment motion, a party may not simply rely on unsupported and conclusory allegations or denials in the pleadings, but must, instead, set forth specific facts illustrating the existence of a genuine issue for trial.
Lenthe Investments v. Service Oil , 2001 ND 187, 636 N.W.2d 189
Mutual assent to a contract is determined by the words of the contract and the parties' objective manifestations of assent.
An agreement to agree is enforceable if its terms are reasonably certain and definite.
Farmers Elevator, Inc. of Grace City v. Custom Processors, Inc. , 2001 ND 172, 639 N.W.2d 706
Judgment in a contract action summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Davison v. Wanner , 2001 ND 162, 639 N.W.2d 706
The trial court's dismissal of this civil damages action for failure of proof summarily affirmed under N.D.R.App.P. 35.1(a)(4).
Dakota Partners v. Glopak, Inc. , 2001 ND 168, 634 N.W.2d 520
A contract provision prohibiting "offset" is not a waiver of the defense of fraud in the procurement of the contract.
Warner and Company v. Solberg , 2001 ND 156, 634 N.W.2d 65
North Dakota's restraint of business statute prohibits an excessive restraint on a person's exercise of a lawful profession, trade, or business.
If an unreasonable restraining clause can be separated leaving a reasonable agreement, the reasonable clause will be sustained and the unreasonable restraining clause rejected.
Eggl v. Letvin Equipment Co. , 2001 ND 144, 632 N.W.2d 435
A trial court's determinations on questions of breach of warranty are treated as findings of fact subject to the clearly erroneous standard of N.D.R.Civ.P. 52(a).
Whether machinery is reasonably fit for the purpose for which it was purchased, and whether a contract of purchase has been rescinded within a reasonable time or not, are questions of fact.
Questions of nonconformity with a contract, substantial impairment of value, and timely notice of revocation are questions of fact.
The time for discovering a breach of warranty and what is a reasonable time for revocation of acceptance are fact questions.
A buyer's right of revocation is not conditioned upon whether it is the seller or the manufacturer that is responsible for the nonconformity.
Matrix v. TAG Investments , 2001 ND 128, 636 N.W.2d 674
Post-judgment orders summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (7), and double costs awarded under N.D.R.App.P. 38 and 39.
US Bank v. Arnold , 2001 ND 130, 631 N.W.2d 150
Whether a telephone call is an appearance entitling a defendant to eight days' notice before a hearing on an application for default judgment is generally a question of law, fully reviewable on appeal. When the nature, content, and purpose of the call is disputed, underlying factual questions are reviewed for clear error.
Relief from default judgment is extraordinary; a party seeking to disturb the finality of default judgment bears a heavy burden of proving the district court abused its discretion. To vacate default judgment, the moving party must present evidence connecting allegations of a medical condition, a busy schedule, or familial illness with excusable neglect.
Farstveet v. Rudolph , 2000 ND 189, 630 N.W.2d 24
Abandonment of the homestead must be established by clear and convincing evidence that the debtor voluntarily departed from the homestead and left without the intent to return and occupy it as a home.
A creditor cannot set aside as fraudulent a transfer of homestead property that the debtor could have claimed as exempt.
Property which is encumbered by valid liens exceeding the value of the property is not an asset within the meaning of the Uniform Fraudulent Transfer Act and is not subject to a fraudulent transfer.
Triple Quest, Inc. v. Cleveland Gear Co., Inc. , 2001 ND 101, 627 N.W.2d 379
An order dismissing an action without prejudice on the ground that jurisdiction or venue is proper in another state based on a contractual forum selection clause is appealable.
When an interest has been transferred during an action, the transferee need not be substituted or joined as a party to have standing to pursue an appeal.
Larson v. Norkot Manufacturing , 2001 ND 103, 627 N.W.2d 386
The discovery rule tolls the statute of limitations in malpractice actions until the plaintiff knows, or with reasonable diligence should know, of the injury, its cause, and the defendant's possible negligence.
To trigger the running of the statute of limitations, a plaintiff need not fully appreciate the potential liability or be convinced of his or her injury, but need only know enough to be on notice of a potential claim.
Schuck v. Montefiore Public School Dist. No. 1 , 2001 ND 93, 626 N.W.2d 698
Employees are required to exhaust available administrative remedies prior to pursuing their claim in court.
Meyer v. Hawkinson , 2001 ND 78, 626 N.W.2d 262
An alleged contract to share proceeds of a winning ticket in the Canadian lottery is unenforceable as contrary to the public policy of the state of North Dakota when the statutory language and legislative history so comprehensively and clearly convey the policy underlying North Dakota's repeated rejection of a state-operated lottery and high-stakes gambling.
When an alleged contract is unenforceable on the basis of public policy, it is unnecessary to consider the issue of whether the contract existed.
Dowhan v. Brockman , 2001 ND 70, 624 N.W.2d 690
The question of who is a prevailing party for an award of disbursements is a question of law, subject to de novo review, while the question of the amounts to be allowed for disbursements is one of fact, subject to an abuse-of-discretion standard of review.
A prevailing party for an award of disbursements is one who prevails on the merits of the main issue.
Global Acquisitions, LLC v. Broadway Park Limited Partnership , 2001 ND 52, 623 N.W.2d 442
In a bench trial, the court must make findings of fact and conclusions of law sufficient to enable the appellate court to understand the factual determination and the basis for the conclusions of law and the judgment entered.
Reliance on the conduct of the party against whom equitable estoppel is asserted must be reasonable, and there must be some form of affirmative deception by that party.
Overboe v. Farm Credit Services of Fargo , 2001 ND 58, 623 N.W.2d 372
The two-year statute of limitations for actions against licensed insurance agents is retroactive and applies to causes of action occurring before July 31, 1995.
A single reference to due process in one sentence of a brief, made in connection with an argument about legislative intent, is insufficient to challenge the constitutional validity of a statute.
Hall Family Living Trust v. Mutual Service Life Ins. Co. , 2001 ND 46, 623 N.W.2d 32
An application for insurance stating the policy does not take effect until delivery creates no insurance contract until the policy is delivered.
The scope of an agent's authority to bind a principal is a question of fact which ordinarily is inappropriate for summary judgment.
Fredericks v. American Federal Bank , 2001 ND 22, 625 N.W.2d 264
Judgment awarding employee severance benefits is summarily affirmed under N.D.R.App.P 35.1(a)(2).
Superpumper, Inc. v. Nerland Oil , 2000 ND 220, 620 N.W.2d 159
The automatic bankruptcy stay applies to actions against a non-debtor codefendant where there is such an identity between the debtor and the codefendant that the debtor is the real party defendant and a judgment against the codefendant is, in effect, a judgment against the debtor.
Pfeifle v. Tanabe , 2000 ND 219, 620 N.W.2d 167
A lessee may terminate a lease and vacate the premises when the lessor fails to secure quiet possession of the premises within a reasonable time, considering the cumulative effect of long-standing and continuous problems.
Before vacating premises, a lessee must give notice to a lessor by requests to repair dilapidations or to secure quiet possession of leased property; however, such notice need not be in writing.
A lessee does not waive a right to terminate a lease by remaining in possession for a period after alleged problems occurred, when the problems continued throughout the period and the lessee repeated complaints and requests for repairs during the period.
Matrix Properties, Corp. v. TAG Investments , 2000 ND 213, 622 N.W.2d 432
District court's post-judgment order summarily affirmed under N.D.R.App.P. 35.1 (a)(1).
Jones v. Barnett , 2000 ND 207, 619 N.W.2d 490
An action to rescind a quitclaim deed is barred by the statute of limitations when the seller fails to submit evidence she did not discover until years later she had been fraudulently induced to convey the property, when her own pleadings indicate knowledge of material facts accruing beyond the six-year limit for fraud claims.
The statute of frauds invalidates oral contracts for an interest in real property, and a contract action based on an alleged contract collateral to a quitclaim deed is barred by the statute of limitations when the alleged contract was executed beyond the six-year limit for contract actions.
Lake Region Lutheran Home, Inc. v. Halvorson , 2000 ND 193, 622 N.W.2d 432
An appeal from a trial court's judgment dismissing a motion to vacate judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4) (the trial court did not abuse its discretion).
Addy v. Myers , 2000 ND 165, 616 N.W.2d 359
Unless otherwise agreed, owners of a limited liability company are not personally liable for the debt of the company and are liable for company debt only to the extent of their capital contribution.
Mann v. Zabolotny , 2000 ND 160, 615 N.W.2d 526
Amendment of pleadings by implication to conform to the evidence under N.D.R.Civ.P. 15(b) arises only when the evidence introduced is not relevant to any issue pleaded in the case.
Garofalo v. St. Joseph's Hospital , 2000 ND 149, 615 N.W.2d 160
If the terms of a contract are ambiguous, extrinsic evidence regarding the parties' intent may be considered, and the terms of the contract and parties' intent are questions of fact, not questions of law.
Nelson v. Nelson , 2000 ND 118, 617 N.W.2d 131
Child support summary judgment summarily affirmed under N.D.R.App.P. 35.1(a)(7).
Bublitz, DC Marketing v. Tsang, , 2000 ND 100, 617 N.W.2d 131
Judgment in contract dispute summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (2).
Auction Effertz, Ltd. v. Schecher , 2000 ND 109, 611 N.W.2d 173
"Transacting any business in this state" should be given an expansive interpretation when deciding personal jurisdiction.
The exercise of personal jurisdiction must not offend traditional notions of justice and fair play.
An agent's wrongful self-dealing permits the principal to void the sale of property.
North Central Good Samaritan Ctr. v. ND Dept. of Human Serv. , 2000 ND 96, 611 N.W.2d 141
When a provider purchases from a related entity, Medicaid reimbursement may be limited to the lesser of the charge to the provider and cost to the related entity.
The moving party has the burden of proof in administrative hearings.
One must demonstrate harm resulting from insufficient notice in order to establish a violation of due process rights.
Matrix Properties Corp., fka E.W. Wylie Corp. v. TAG Investments , 2000 ND 88, 609 N.W.2d 737
Where the exercise of an option to purchase does not provide for payment of the purchase price coincident with the optionee's exercise of the option, payment of the purchase price is merely an incident of performance of the bilateral contract created by exercise of the option.
Exercise of an option must be unconditional. A contract with a provision allowing one party to rescind if certain requirements are not to their "satisfaction" is not conditional because an objective standard is employed in interpreting it.
Bank Center First v. Kostelecky , 2000 ND 84, 609 N.W.2d 721
The trial court retains jurisdiction over a judgment debtor after the judgment is entered and has the authority to compel the debtor to comply with post-judgment discovery procedures.
O & K Glass Co. v. Innes Construction Co. , 2000 ND 56, 608 N.W.2d 236
This Court will not vacate an arbitration award unless it is "completely irrational,"
An arbitrator's mere mistake as to fact or law is not a sufficient ground to overturn an arbitration award.
Van Valkenburg v. Paracelsus Healthcare Corp. , 2000 ND 38, 606 N.W.2d 908
A viable claim for damages defeats a mootness challenge.
A contract is construed as a whole to give meaning to each provision.
A party resisting a motion for summary judgment must present competent admissible evidence that raises an issue of material fact.
The due process and hearing provisions of a hospital's medical staff bylaws are not implicated unless a physician's medical and clinical privileges are revoked or suspended for reasons bearing on professional competency, conduct, or character.
Steiner v. Ford Motor Co. , 2000 ND 31, 606 N.W.2d 881
The economic loss doctrine applies to consumer purchases and bars recovery in tort for economic loss resulting from damage to a defective product when there is no damage to other property or persons.
Whether an implied warranty of merchantability has been excluded or modified is a question of fact and may involve factual inferences that can be decided only by the trial court, as trier of fact.
Schneider v. Schaaf , 1999 ND 235, 603 N.W.2d 869
Proof of actual damage proximately caused by a misrepresentation or nondisclosure is an essential element of a tort action for fraud and deceit.
The concerted action provisions of N.D.C.C. 32-03.2-02 do not create an independent basis of tort liability, but deal only with the allocation of damages among those already at fault.
Actual damages are an essential element of the tort of interference with prospective business advantage.
Plaintiffs who allege conspiracy under federal civil rights statutes must plead the operative facts on which their claim is based; bald allegations of a conspiracy are insufficient.
Kaler v. Kraemer , 1999 ND 237, 603 N.W.2d 698
Whether a contract contains an ambiguity is a question of law, and once an ambiguity is determined to exist, a court may use extrinsic evidence to resolve it.
Construing a contract against the drafter is an interpretation principle of last resort which should not be applied to frustrate clear intentions of the parties.
A prevailing party in a breach of contract action is entitled to prejudgment interest where damages are certain or capable of being made certain by calculation.
Parties to a contract are entitled to relief specified within that document where another party knowingly misrepresented facts material to the contract.
Stout v. Fisher Industries, Inc. and/or Fisher Sand and Gravel Co. , 1999 ND 218, 603 N.W.2d 52
A trial court's discovery decisions will not be reversed on appeal absent an abuse of discretion.
To be valid and enforceable, a contract must be reasonably definite and certain in its terms.
An agreement which is so uncertain and incomplete as to any of its essential terms that it cannot be carried into effect without new and additional stipulations between the parties is not enforceable.
Kuntz v. Muehler , 1999 ND 215, 603 N.W.2d 43
The two-year professional malpractice statute of limitations does not apply to certified financial planners.
Barnes v. St. Joseph's Hospital , 1999 ND 204, 601 N.W.2d 587
The duty of good faith and fair dealing does not obligate a party to accept a material change in the contract's terms or to assume obligations that vary or contradict its express provisions.
Each party to a contract impliedly agrees not to prevent the other party from performing and not to render performance impossible.
Community National Bk. of Grand Forks v. Husain , 1999 ND 201, 600 N.W.2d 886
A disputed issue of material fact precludes entry of summary judgment under N.D.R.Civ.P. 56(c).
References in an appellate brief to matters not in the record violate N.D.R.App.P. 30(a), and may result in sanctions.
Earnest v. Garcia , 1999 ND 196, 601 N.W.2d 260
Failure to give notice of claim against the state or state employees under N.D.C.C. 32- 12.2-04(1) deprives a court of subject matter jurisdiction, and noncompliance cannot be waived, but can be raised sua sponte at any time.
A party opposing a summary judgment motion must present competent admissible evidence raising a material factual issue, drawing the court's attention to the evidence by appropriate citation to the record, and explaining the connection between the factual contentions and legal theories.
CAP Partners v. Cameron , 1999 ND 178, 599 N.W.2d 309
Whether a party has breached a lease, and whether there has been a waiver of a right to terminate a lease, are findings of fact.
A waiver occurs when a person voluntarily and intentionally relinquishes a known right or privilege.
Wells v. First American Bank West , 1999 ND 170, 598 N.W.2d 834
A breach of contract action does not accrue until the aggrieved party discovers the facts constituting the basis for the cause of action or claim for relief.
Haag, Haag Construction v. Noetzelman , 1999 ND 157, 598 N.W.2d 121
A trial court's findings as to the method and cost of repairing the deficient construction will not be reversed when supported by reasonable evidence in the record.
In interpreting a contract, provisions must be considered in the context of the entire contract.
Strom-Sell v. Council for Concerned Citizens , 1999 ND 132, 597 N.W.2d 414
A trial court's denial of a motion for summary judgment does not preclude it from considering a subsequent motion for summary judgment by the same party.
Officers, directors, and agents are not generally liable for a corporation's debts, absent fraud, other recognized extraordinary circumstances, or a specific statutory provision imposing liability.
Romanyshyn v. Fredericks , 1999 ND 128, 597 N.W.2d 420
A trial court's oral findings of fact may be used to explain its written findings of fact.
Fargo Foods, Inc. v. Bernabucci , 1999 ND 120, 596 N.W.2d 38
A party seeking to terminate a contract under a termination provision in the contract must comply with the requirements of the termination provision.
Kuntz v. Kuntz , 1999 ND 114, 595 N.W.2d 292
Intent and the existence of an oral contract are questions of fact.
To be specifically enforceable, an oral agreement must be just and reasonable to the party against whom enforcement is sought, and must be sufficiently certain as to the act to be done.
Schlossman & Gunkelman, Inc. v. Tallman , 1999 ND 89, 593 N.W.2d 374
The parties' intent controls whether there is an offer to compromise under N.D.R.Evid. 408.
In deciding whether to admit evidence of an offer to compromise for impeachment under N.D.R.Evid. 408, a trial court must balance the probative value of the evidence against its prejudicial value within the context of the policies of encouraging open and frank discussions during settlement negotiations and accommodating the truth-finding process through the evaluation of a witness's credibility.
Woodworth v. Chillemi , 1999 ND 43, 590 N.W.2d 446
When requested by a party under N.D.R.Civ.P. 59(j), a trial court should clarify obvious inconsistencies and ambiguities in its judgments.
Hoffner v. Bismarck Public School District , 1999 ND 3, 589 N.W.2d 195
The notice of contemplated nonrenewal of a teacher's contract must list reasons for nonrenewal which are drawn from findings arising from the teacher's written evaluations.
In determining whether to nonrenew a teacher's contract, the school board is not limited to problems identified in the teacher's most recent evaluation, but may consider matters raised in prior evaluations.
McGee v. Palczewski, , 1998 ND 196, 595 N.W.2d 602
District court's judgment dismissing counterclaim summarily affirmed under N.D.R.App. P. 35.1(a)(2).
Ag Services of America v. Midwest Investment Limited , 1998 ND 189, 585 N.W.2d 571
Under N.D.C.C. 22-01-15, a guarantor is exonerated if the creditor alters the principal's original obligation in any respect without the guarantor's consent. To be exonerated, a guarantor need not be injured by an alteration in the principal's obligation.
Anseth v. Dupont Co. , 1998 ND App 10, 585 N.W.2d 582
A judgment dismissing an action without prejudice is not appealable.
Haugstad HB Rentals v. Baltrusch , 1998 ND App 7, 583 N.W.2d 830
The construction of the language of a written contract to determine the legal effect is a question of law for the court to decide.
Circle B Enterprises, Inc. v. Steinke , 1998 ND 164, 584 N.W.2d 97
A contractor who fails to substantially perform a contract cannot recover under the contract for work performed, but may be entitled to recover in quantum meruit if the value of the part performance is not integrated into a valid liquidated damages clause.
Towne v. Dinius , 1998 ND 162, 590 N.W.2d 230
Judgment as a matter of law entered by the trial court summarily affirmed under N.D.R.App.P. 35.1(a)(6).
Peterson v. Dougherty Dawkins, Inc. , 1998 ND 159, 583 N.W.2d 626
The trial court has broad discretion in determining whether to certify a class action under N.D.R.Civ.P. 23, and its decision will be overturned on appeal only if the court has abused its discretion.
There is a broad and liberal policy in favor of class actions in this State.
In determining whether a class action will provide a fair and efficient adjudication of the controversy, the court must consider the thirteen factors listed in N.D.R.Civ.P. 23(c)(1), but no one factor predominates and all thirteen factors need not be satisfied before certification is appropriate.
A court may certify a class action even if other states' law will apply to some class members' claims.
The common fact issues need not be dispositive of the entire litigation, and class action status is not precluded merely because individual fact issues will remain after the common issues are resolved.
Messiha v. State of ND , 1998 ND 149, 583 N.W.2d 385
A trial court does not abuse its discretion in denying a motion to amend a complaint made after a responsive pleading is served if the claim could have been brought as an independent action.
A party making a contractual claim for the recovery of money against the State must present a written claim for money to the entity designated under N.D.C.C. 32-12-03.
A party making a noncontractual claim against the State must present a written claim for compensation to the office of management and budget under N.D.C.C. 32-12.2-04.
Hageness v. Hageness , 1998 ND 147, 582 N.W.2d 661
Failure to fulfill the requirements of a stipulation incorporated into a judgment must be remedied by enforcement of the court's judgment, not in a separate action on the stipulation.
A party may bring a separate breach of contract action to enforce a stipulation if the stipulation was not incorporated into a judgment. An agreement to agree is not an enforceable contract.
McKibben v. Grigg , 1998 ND App 5, 582 N.W.2d 669
No formal record of arbitration proceedings is necessary, findings of fact and conclusions of law are not required, and arbitrators need not state a reason for their decision.
Where a contract provides that disputes arising under the terms of the contract must be submitted to arbitration and that the decision of the arbitrators is binding, the submission, by definition, includes all issues of law and fact.
Superpumper, Inc. v. Nerland Oil , 1998 ND 144, 582 N.W.2d 647
The Federal Arbitration Act (FAA) preempts state law and governs all written arbitration agreements in contracts involving interstate commerce.
When the state-enacted Uniform Arbitration Act (UAA) impedes the accomplishments and execution of the full purposes and objectives of the FAA, it is preempted.
When the district court's order compelling arbitration is entered in an embedded proceeding, it is non-appealable under either the FAA or the UAA.
Billey v. ND Stockmen's Assn , 1998 ND 120, 579 N.W.2d 171
A plaintiff's motive for bringing suit is irrelevant to the determination whether he has standing.
The North Dakota Stockmen's Association acts as an agent for the State when performing brand inspection and registration services, and the fees generated by those services are "public moneys" which must be paid over to the State Treasurer under N.D. Const. Art. X, section 12.
Those portions of N.D.C.C. sections 36-09-18 and 36-22-03 which direct payment of brand inspection and recording fees into the general fund of the North Dakota Stockmen's Association are unconstitutional.
The Packers and Stockyards Act of 1921, 7 U.S.C. sections 181-231, was not intended to wholly occupy the field and does not preempt state laws governing brand inspection.
A state requirement fees collected by the North Dakota Stockmen's Association for brand inspection services be paid over to the State Treasurer does not conflict with 7 U.S.C. section 217a(c).
Campbell Farms v. Wald , 1998 ND 85, 578 N.W.2d 96
Under NDCC 41-02-71, questions of nonconformity with a contract for the sale of goods, substantial impairment of value, and timely notice of revocation are questions of fact.
A contract need not be ambiguous for the admission of evidence of usage of trade.
Holzer v. Jochim , 1998 ND 82, 585 N.W.2d 581
A judgment determining that a partnership had been dissolved and awarding a partner payment for his labor contributed to the partnership is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
The Perry Center, Inc. v. Heitkamp , 1998 ND 78, 576 N.W.2d 505
A trial court's discretion to grant a N.D.R.Civ.P. 56(f) continuance is limited when a summary judgment motion is based on governmental immunity.
A court-appointed receiver is entitled to absolute derivative judicial immunity when acting in the scope of his authority and in accordance with court order.
The Director of the Department of Human Services is entitled to discretionary act immunity under N.D.C.C. 32-12.2-02(3)(b) for nonministerial conduct involving the licensure and regulation of maternity homes.
The Attorney General and an Assistant Attorney General are entitled to absolute prosecutorial immunity for initiating and bringing a civil consumer protection action.
State officials sued in their individual capacities under 42 U.S.C. 1983 are entitled to qualified immunity from liability if the challenged actions are ones a reasonable official could have believed were lawful.
Diversified Financial Systems v. Binstock , 1998 ND 61, 575 N.W.2d 677
In ruling on a motion for judgment notwithstanding the verdict, the trial court must view the evidence in the light most favorable to the litigant against whom the motion is made, without weighing the evidence or judging the credibility of the witnesses, to determine whether or not the evidence leads to but one reasonable conclusion.
Fode v. Capital RV Center, Inc. , 1998 ND 65, 575 N.W.2d 682
Buyers are entitled to revoke their acceptance of a motor home against both the immediate seller and the manufacturer when the seller's sales contract with the buyer and the manufacturer's warranty are so closely linked in time of delivery and subject matter, they blended into a single unit at the time of the sale.
A trial court abuses its discretion by awarding buyers attorney fees without affording defendants an opportunity to be heard on the issue.
Global Financial Services v. Duttenhefner , 1998 ND 53, 575 N.W.2d 667
Under the North Dakota law of assignment, an assignee of the Resolution Trust Corporation is entitled to the benefit of the federal statute of limitations under 12 U.S.C. 1821(d)(14).
Kaler v. Kraemer , 1998 ND 56, 574 N.W.2d 588
Complaints are construed liberally so as to do substantial justice.
Boe v. Rose , 1998 ND 29, 574 N.W.2d 834
A purchaser of property from a personal representative must act in good faith to receive the protections afforded under N.D.C.C. 30.1-18-11.
The trial court erred in granting summary judgment granting specific performance to a purchaser of farmland from the personal representative of an estate because, there was a genuine issue of fact whether the purchaser knew the personal representative needed the prior approval of the devisees and, therefore, was not acting in good faith when he purchased the property.
Tracy v. Central Cass Public School District , 1998 ND 12, 574 N.W.2d 781
A teacher's tortious interference claim is dismissed for lack of subject matter jurisdiction when the teacher failed to exhaust administrative remedies before State Education Standards and Practices Board.
Ohnstad Twichell, P.C. v. Treitline , 1998 ND 10, 574 N.W.2d 194
Under N.D.C.C. 30.1-21-04 and N.D.C.C. 30.1-21-06, a claim must have been previously adjudicated against the claimant in order to bar the claimant from using the statutory procedure to collect from distributees.
Simmons v. New Public School District No. Eight , 1998 ND 6, 574 N.W.2d 561
A notice of contemplated nonrenewal of a school superintendent under NDCC 15-47-38.2(13) must give the reasons for nonrenewal with sufficient particularity to notify the superintendent of the specific grounds and factual claims to be addressed at the hearing.
Moran v. Sheppard , 1998 ND 3, 576 N.W.2d 524
A judgment awarding damages and foreclosing a mechanic's lien, and an order denying a motion for a new trial or amendment of the findings of fact, are summarily affirmed under N.D.R.App.P. 35.1.
Albrecht v. Walter , 1997 ND 238, 572 N.W.2d 809
Generally, guarantors who pay more than their proportionate share of an obligation are entitled to contribution from other guarantors who are jointly and severally liable for the contribution.
A paying guarantor taking an assignment may not recover from his coguarantors more than their proportionate shares of the amount paid.
A coguarantor may purchase an assignment of a note and guaranties, but the parties' initial relationship as coguarantors operates as a matter of law to restrict the recovery and governs the rights of the coguarantors.
Buckingham v. Weston Village Homeowners Assn. , 1997 ND 237, 571 N.W.2d 842
Amendments to a condominium association's bylaws are limited by the "reasonableness" test, and may not be unreasonable, arbitrary, capricious, or discriminatory.
Long v. Samson , 1997 ND 174, 568 N.W.2d 602
A nontenured probationary professor's failure to exhaust administrative remedies at UND precludes him from bringing contract and tort claims arising from the nonrenewal of his employment relationship with UND.
Evenstad v. Buchholz , 1997 ND 141, 567 N.W.2d 194
The trial court did not err in denying the appellant's pretrial motions or in concluding the appellant had no legal or equitable interest in disputed farm property.
Rolin Manufacturing v. Mosbrucker , 1997 ND 139, 566 N.W.2d 819
A trial court does not have authority to decide an appeal to the Supreme Court is frivolous.
Towne v. Dinius , 1997 ND 125, 565 N.W.2d 762
The purchaser of a vehicle can sue the seller for fraud and breach of warranty based upon statements made by the seller's agent in negotiations. Statements made during contract negotiations which are offered to prove the terms of the contract are not hearsay.
Peterson v. Ramsey County , 1997 ND 92, 563 N.W.2d 103
Contractor's cashing of a check later designated as "final offer for final payment" did not constitute accord and satisfaction as a matter of law when Contractor did not intend to abandon his remaining claims. Trial court's finding that Contractor's actions did not constitute accord and satisfaction was not clearly erroneous based on record.
Johnson v. Schmit Brothers Construction, Inc. , 1997 ND 70, 565 N.W.2d 505
Denial of motion for a new trial summarily affirmed under N.D.R.App.P. 35.1(a)(4).
Service Oil, Inc., v. Chabot , 1997 ND 74, 562 N.W.2d 571
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.
Dvorak v. AgriBank, FCB , 1997 ND 53, 565 N.W.2d 505
Appeal from order denying motion to vacate judgment of dismissal with prejudice was summarily affirmed under NDRAppP 35.1(a)(4).
Opp v. Matzke , 1997 ND 32, 559 N.W.2d 837
On motion for summary judgment, the trial court's finding that a water well in rural Oliver County has value and subsequently holding co-tenant liable for its costs is affirmed. Trial court's denial of summary judgment to co-tenant's spouse because of lack of jurisdiction is reversed.
Hulstrand Construction v. James Cape & Sons, Co. , 1997 ND 27, 565 N.W.2d 505
Arbitration award summarily affirmed under Rule 35.1, N.D.R.App.P.
Fankhanel v. M & H Construction Co. , 1997 ND 20, 559 N.W.2d 229
Under Minnesota law, the district court properly dismissed a claim for tortious interference with the contract on summary judgment because defendant was justified in requesting plaintiff's employer make deliveries to it by someone other than plaintiff.
Olson v. Souris River Telecommunications Cooperative, Inc. , 1997 ND 10, 558 N.W.2d 333
Employee handbook containing express disclaimer that "it is not a contract" does not overcome the presumption of at will employment found in N.D.C.C. 34-03-01.
Tormaschy v. Tormaschy , 1997 ND 2, 559 N.W.2d 813
In quiet-title actions, for trial of the issue of waiver, the issue must be specifically pled, pursuant to Rule 8(c), N.D.R.Civ.P.
Holzer v. Jochim , 557 N.W.2d 57 (N.D. 1996)
A successor to the judge who tried a civil action for damages erred by redetermining liability issues, after reviewing the trial transcript, without affording the parties an opportunity to retry the case.
Johnson, Johnson, Stokes, Sandberg & Kragness, Ltd. v. Birnbaum , 555 N.W.2d 583 (N.D. 1996)
For purposes of Rule 60(b)(iv), N.D.R.Civ.P., a judgment is void only if the court lacked subject matter jurisdiction over the action or personal jurisdiction over the parties. A default judgment for damages entered on improper legal grounds was not void.
Ridl v. EP Operating Limited Partnership , 553 N.W.2d 784 (N.D. 1996)
An oil and gas lessee did not lose its interest in a 1973 lease when it failed to respond within 20 days of the lessor's notice, under Section 47-16-36, N.D.C.C., of termination of the lease.
The trial court properly ruled the lessor had not made an appropriate demand that the implied covenant of further development be complied with within a reasonable time.
Pear v. Grand Forks Motel Associates , 553 N.W.2d 774 (N.D. 1996)
The parol evidence rule precluded consideration of oral negotiations to show that loans by the partners were actually contributions of capital, where the written partnership agreements and promissory notes from the partnership to partners were clear and unambiguous.
A debtor who signs a renewal note indicating he owes a past debt waives any statute of limitations defense he may have had and the statute begins to run anew from the date of the renewal note.
Bangen v. Bartelson , 553 N.W.2d 754 (N.D. 1996)
Because the appellants argued they were entitled to an additional lease benefit, their acceptance of a $6,000 cash award did not waive their right to appeal.
A lease cannot be voided upon the lessee's mistake of fact arising from the lessee's neglect to determine the true state of title to the property.
A joint tenant has the right to lease her interest in the property without the consent of the other joint tenant. The lessee succeeds to all the rights of the lessor to enjoy possession of the property with the other joint tenant.
Diocese of Bismarck Trust v. Ramada Inc. , 553 N.W.2d 760 (N.D. 1996)
The ten-year statute of limitations in Section 28-01-15(2), N.D.C.C., applies to an action for reformation of a ground lease on the basis of mutual mistake. A reformation action based upon mutual mistake accrues when the facts which constitute the mistake have been, or in the exercise of reasonable diligence should have been, discovered by the parties seeking relief.
Under Section 32-04-17, N.D.C.C., reformation of a contract is not available against third persons who have acquired rights in good faith and for value.
If parties make a mistake in reducing a prior agreement to writing, the negligent failure to read the subsequent written agreement does not preclude reformation of the agreement unless failure to read the agreement was not in good faith or was not in accordance with reasonable standards of fair dealing.
Earthworks, Inc. v. Sehn , 553 N.W.2d 490 (N.D. 1996)
When the seller of a business agrees not to engage in that business in the area for a reasonable length of time, good will although not specifically mentioned passes as an incident of the sale.
If each party prevails on certain parts of a lawsuit, the trial court need not award costs under Section 28-26-06, N.D.C.C., to either party.
Ohio Farmers Ins. Co. v. Dakota Agency, Inc. , 551 N.W.2d 564 (N.D. 1996)
An insurance agency breached an agency agreement when its employee issued performance bonds without the prior approval of the bond insurance company.
First American Bk. Valley v. George J. Hegstrom Co. , 551 N.W.2d 288 (N.D. 1996)
Under the Uniform Commercial Code, proceeds of a settlement agreement in an impending lawsuit are general intangibles.
Under the unambiguous terms of a work-out agreement, a creditor was entitled to the settlement proceeds from the debtor
Jones v. Pringle & Herigstad, P.C. , 546 N.W.2d 837 (N.D. 1996)
Signal Management Corp. v. Lamb , 541 N.W.2d 449 (N.D. 1995)
Lire, Inc. v. Bob's Pizza Inn Restaurants , 541 N.W.2d 432 (N.D. 1995)
Schmidt v. Schmidt , 540 N.W.2d 605 (N.D. 1995)
Secret Moments v. Bertsch , 544 N.W.2d 176 (N.D. 1995)
Estate of Zubicki v. Rutherford , 537 N.W.2d 559 (N.D. 1995)
Kief Farmers Coop. Elevator Co. v. Farmland Mutual Ins. Co. , 534 N.W.2d 28 (N.D. 1995)
Duchscherer v. W.W. Wallwork, Inc. , 534 N.W.2d 13 (N.D. 1995)
Roen Land Trust v. Frederick , 530 N.W.2d 355 (N.D. 1995)
Slorby v. Johnson , 530 N.W.2d 307 (N.D. 1995)
Huber v. Oliver County , 529 N.W.2d 179 (N.D. 1995)
Delzer v. United Bank of Bismarck , 527 N.W.2d 650 (N.D. 1995)
Agassiz West Condominium Association v. Solum , 527 N.W.2d 244 (N.D. 1995)
Praus v. Trollope , 537 N.W.2d 365 (N.D. 1995)
Barnes v. Mitzel Builders , 526 N.W.2d 244 (N.D. 1995)
Pamida, Inc. v. Meide , 526 N.W.2d 487 (N.D. 1995)
Timmerman Leasing, Inc. v. Christianson , 525 N.W.2d 659 (N.D. 1994)
Finstrom v. First State Bank of Buxton , 525 N.W.2d 675 (N.D. 1994)
United Accounts, Inc. v. Teladvantage, Inc. , 524 N.W.2d 605 (N.D. 1994)
E. W. Wylie Corp. v. Menard, Inc. , 523 N.W.2d 395 (N.D. 1994)
Vandal v. Peavey Co. , 523 N.W.2d 266 (N.D. 1994)
Jensen v. Zuern , 523 N.W.2d 388 (N.D. 1994)
Berg v. Lien , 522 N.W.2d 455 (N.D. 1994)
Habeck v. MacDonald , 520 N.W.2d 808 (N.D. 1994)
Herman Oil, Inc. v. Peterman , 518 N.W.2d 184 (N.D. 1994)
State of ND,dba Bank of ND v. Larsen , 515 N.W.2d 178 (N.D. 1994)
A & H Services, Inc. v. City of Wahpeton , 514 N.W.2d 855 (N.D. 1994)
House of Color v. Stahl , 520 N.W.2d 60 (N.D. 1994)
Rose Creek Development Corp. v. Plaza Development Group , 514 N.W.2d 368 (N.D. 1994)
Americana Healthcare Center, Fargo v. ND Dept. of Human Services , 513 N.W.2d 889 (N.D. 1994)
Weiss, Wright, Paulson & Merrick v. Stedman , 507 N.W.2d 901 (N.D. 1993)
Nesdahl Surveying & Engineering, P.C. v. Ackerland Corp. , 507 N.W.2d 686 (N.D. 1993)
Wolf v. Logan , 506 N.W.2d 736 (N.D. 1993)
ND Dept. of Agriculture v. Kelsch , 509 N.W.2d 273 (N.D. 1993)
Severson v. Surita , 506 N.W.2d 410 (N.D. 1993)
Federal Deposit Insurance Corporation v. Jahner , 506 N.W.2d 57 (N.D. 1993)
Williston Farm Equipment, Inc. v. Steiger Tractor, Inc. , 504 N.W.2d 545 (N.D. 1993)
First Natl. Bk. & Trust Co. of Williston v. Anseth , 503 N.W.2d 568 (N.D. 1993)
Hall v. St. Joseph's Hospital & Health Center , 503 N.W.2d 848 (N.D. 1993)
First American Bank West v. Michalenko , 501 N.W.2d 330 (N.D. 1993)
K & K Implement v. First Natl. Bk., Hettinger , 501 N.W.2d 734 (N.D. 1993)
W. W. Wallwork, Inc. v. Duchscherer , 501 N.W.2d 751 (N.D. 1993)
Dakota Grain Co. v. Ehrmantrout , 502 N.W.2d 234 (N.D. 1993)
Richmond v. Nodland , 501 N.W.2d 759 (N.D. 1993)
Sturdevant v. Fargo Culvert Company , 501 N.W.2d 762 (N.D. 1993)
Littlefield v. Union State Bank , 500 N.W.2d 881 (N.D. 1993)
Cook v. Hansen , 499 N.W.2d 94 (N.D. 1993)
United Accounts, Inc. v. Teladvantage, Inc. , 499 N.W.2d 115 (N.D. 1993)
Friedt v. Moseanko , 498 N.W.2d 129 (N.D. 1993)
Hoggarth v. Somsen , 496 N.W.2d 35 (N.D. 1993)
Taghon v. Kuhn , 497 N.W.2d 403 (N.D. 1993)
Overboe v. Odegaard , 496 N.W.2d 574 (N.D. 1993)
Belfield Education Association v. Belfield Public School District No. 13 , 496 N.W.2d 12 (N.D. 1993)
Werlinger v. Mutual Service Casualty Insurance Co. , 496 N.W.2d 26 (N.D. 1993)
Hieb v. Jelinek , 497 N.W.2d 88 (N.D. 1993)
GeoStar Corporation v. Parkway Petroleum, Inc. , 495 N.W.2d 61 (N.D. 1993)
Kipp v. Lipp , 495 N.W.2d 56 (N.D. 1993)
Smith v. Vestal v. Red River Supply, Inc. , 494 N.W.2d 370 (N.D. 1992)
Mellon v. Norwest Bank of Mandan , 493 N.W.2d 700 (N.D. 1992)
Norwest Bank ND v. Christianson , 494 N.W.2d 165 (N.D. 1992)
Zuger v. ND Ins. Guaranty Assoc. , 494 N.W.2d 135 (N.D. 1992)
Kohler v. Flynn , 493 N.W.2d 647 (N.D. 1992)
Capsco Products, Inc., Bis-Man Sea Ray Boats v. Savageau , 493 N.W.2d 650 (N.D. 1992)
Johnson Construction, Inc. v. Rugby Municipal Airport Authority , 492 N.W.2d 61 (N.D. 1992)
Coldwell Banker First Realty, Inc. v. Kane , 491 N.W.2d 716 (N.D. 1992)
Rosenberg v. Son, Inc. , 491 N.W.2d 71 (N.D. 1992)
Schmitt v