Opinions

DuPaul v. ND Dept. of Transportation 2003 ND 201
Docket No.: 20030173
Filing Date: 12/23/2003
Case Type: Appeal - Administrative - Department of Transportation
Author: Neumann, William

Highlight: A motorist may not appeal an administrative decision by the Department of Transportation to the district court and simultaneously petition for reconsideration of the Department's denial. If the motorist files a petition for reconsideration, the motorist may appeal the order on reconsideration to the district court.

Gratech Co., Ltd. v. Wold Engineering, P.C. 2003 ND 200
Docket No.: 20030181
Filing Date: 12/23/2003
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: 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.

Eberhardt v. Eberhardt 2003 ND 199
Docket No.: 20030065
Filing Date: 12/19/2003
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A sufficient foundation can be established for the admission of medical bills into evidence by the claimant's testimony the bills were incurred.
The question of whether evidence should be excluded for lack of authentication is primarily within the sound discretion of the trial court.
A trial court's determination on visitation is a finding of fact that will not be reversed unless it is clearly erroneous.

VND, LLC v. Leevers 2003 ND 198
Docket No.: 20030091
Filing Date: 12/19/2003
Case Type: Appeal - Civil - Landlord/Tenant
Author: Sandstrom, Dale

Highlight: The right to the possession of real estate is the only fact that can be litigated in a summary eviction action unless damages or rent is claimed.
When the right to possession depends on whether or not rent was paid or whether there are material breaches, evidence can be presented to determine those issues.
Charges classified as additional rents and defined as such under a lease are considered rents for the purpose of summary eviction.
Failure to pay rent when a credit is due cannot justify summary eviction.
When a lessee is required to purchase insurance of an "all risk" form under a lease to "protect against any loss, damage and/or destruction to the building or any other insurable portion of the demised premises," the language does not also obligate the lessee to provide for liability insurance.
Custom and usage need not be considered when the language of the lease is not ambiguous.
Laches and waiver do not apply when a party is not trying to assert a right or bring a claim.

State v. Waltz (CONSOLIDATED w/20030120 & 20030121) 2003 ND 197
Docket No.: 20030119
Filing Date: 12/19/2003
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Probable cause to arrest exists when an officer has knowledge that would give a prudent person reasonable grounds to believe an offense has been or is being committed.
After making a lawful custodial arrest of the occupant of an automobile, the police may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile, including any containers found therein.
The tentative elimination of alcohol as the cause of a defendant's impairment may result in a reasonable suspicion that the defendant is under the influence of drugs.

N.D. Dept. of Human Services v. Ryan 2003 ND 196
Docket No.: 20030156
Filing Date: 12/19/2003
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: Related administrative regulations are construed together and in conjunction with enabling legislation to harmonize and give meaning to each provision.
An individual who has been terminated through a reduction-in-force may appeal the hiring authority's decision not to reemploy the individual if no more than one year has elapsed since the individual lost employment due to the reduction-in-force.
In deciding whether to reemploy an individual who has been terminated within one year under a reduction-in force, a hiring authority may conduct personal interviews to determine the minimum qualifications established for the particular position.

Linser v. Office of Attorney General, et al. 2003 ND 195
Docket No.: 20030184
Filing Date: 12/19/2003
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: An applicant for Medicaid benefits must prove eligibility.
Assets in a support trust are deemed to be available to the applicant and considered to be part of the applicant's assets in determining Medicaid eligibility. However, assets in a discretionary trust are considered available only to the extent amounts are actually distributed to the beneficiary.
An asset to which an applicant has a legal entitlement is not unavailable simply because the applicant must initiate legal proceedings to access the asset.

Zander v. Workforce Safety and Insurance 2003 ND 194
Docket No.: 20030129
Filing Date: 12/19/2003
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: Clear and convincing evidence means evidence which leads to a firm belief or conviction that the allegations are true.

Benson v. Workforce Safety and Insurance 2003 ND 193
Docket No.: 20030155
Filing Date: 12/19/2003
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: If an appellant fails to serve the notice of appeal from an administrative order to the district court as required by the Administrative Agencies Practice Act, the district court lacks subject matter jurisdiction and the appeal must be dismissed.

State v. Parizek 2003 ND 192
Docket No.: 20030125
Filing Date: 12/19/2003
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Conviction of possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(4).