Cladding Tech., Inc. v. State ex rel. Clayburgh , 1997 ND 84 - Civil No. 960276 A repair business is responsible for use tax on repair materials purchased from out-of-state vendors who did not collect tax, and for sales tax on purchases from in-state vendors who did not collect tax. A taxpayer is responsible for sales or use tax on freight costs that are not separately billed. Decision of tax commissioner not to excuse the taxpayer from interest and penalties will not be disturbed unless it is arbitrary.
Gale v. North Dakota Board of Podiatric Medicine , 1997 ND 83 - Civil No. 960295 In imposing discipline against a podiatrist, the Board of Podiatric Medicine did not violate N.D.A.C. 64-04-01-02 and N.D.C.C. 28-32-08(1) and 28-32-12.2(1). The Board's procedures did not deprive the podiatrist of a fair hearing or due process, and its decision to impose discipline for misleading advertisements and for failing to conform to minimal standards of acceptable podiatric practice was supported by a preponderance of the evidence.
April 24, 1997
Matter of Estate of Lutz , 1997 ND 82 - Civil No. 960177 Summary judgment of spouse's creditor claim against decedent's estate for services is inappropriate when factual disputes exist whether spouse has overcome the presumption that familial services are gratuitous. Summary judgment of spouse's elective share claim based on waiver by premarital agreement is inappropriate when factual disputes exist whether the agreement was procedurally enforceable if spouse was not advised by decedent's attorney about need for independent counsel or about the effect of consent to dual representation, and whether it was substantively unconscionable under the circumstances. Although unconscionability of a premarital agreement is a question of law for the court, a conclusion of unconscionability necessarily turns on factual findings often precluding summary judgment.
April 22, 1997
Barnes v. Gates , 1997 ND 68 - Civil No. 960240 Trial court's denial of motion for new trial affirmed under N.D.R.App.P. 35.1.
Bernhardt v. Bernhardt , 1997 ND 80 - Civil No. 960205 On appeal from a motion to modify child support, the trial court's decision was clearly erroneous because it made no finding of disability and failed to impute income as otherwise required, failed to award increased support because of an erroneous view of the law, and made other errors as acknowledged by the parties.
City of Fargo v. Novotny , 1997 ND 73 - Criminal No. 960347 The trial court's jury instructions concerning the actual physical control statute were a correct statement of the law under the facts of this case. The defendant's position in the driver's seat made him capable of operating the vehicle, and thus the law did not require the district court to instruct the jury that an intoxicated person's presence in a motor vehicle as a passenger does not constitute the offense.
Dakutak v. Dakutak , 1997 ND 76 - Civil No. 960350 The Supreme Court reviews de novo one trial court's interpretation of another trial court's judgment or decree. Under a prior divorce decree, the wife was personally liable for only that part of a credit union debt not satisfied by the husband's Corvette, which was given as collateral for the debt.
Disciplinary Board v. Leier , 1997 ND 79 - Civil No. 960248 The Supreme Court disbarred attorney Patrick F. Leier who, on numerous occasions between 1985 and 1993, failed to diligently represent clients' interests, mishandled client funds, and lied to clients about the status of their cases. When professional misconduct clearly justifies disbarment, resignation is generally not a suitable alternative sanction.
Disciplinary Action Against LeRoy P. Anseth , 1997 ND 66 - Civil No. 960297 Attorney was publicly reprimanded for failure, upon termination of his representation, to turn over case documents belonging to the client and to inform the client about the incomplete status of cases as required by NDRPC 1.16(e).
Linderkamp v. Hoffman , 1997 ND 64 - Civil No. 960174 Specific performance of an agreement rests in the sound discretion of the trial court. Specific performance may be denied if a contract is not fair, reasonable, and based on adequate consideration. Specific performance must be denied if the terms of an agreement are not sufficiently certain to make the precise act which is to be done clearly ascertainable.
Moch v. Moch , 1997 ND 69 - Civil No. 960178 The trial court's finding of the amount paid on two contracts for deed was clearly erroneous because it allowed a double credit for the down payment. Cancellation of a contract for deed by action is an action in equity. When a seller cancels a contract for deed by action, the matter of a redemption period is left to the trial court's sound discretion.
Mosbrucker v. Mosbrucker , 1997 ND 72 - Civil No. 960329 Trial court's denial of motion to change custody and award child support based on a finding that no change of circumstances occurred was clearly erroneous.
Nelson v. Director, North Dakota Department of Transportation , 1997 ND 81 - Civil No. 960232 The hearing officer was reasonable in finding the report and notice form was received by the Department of Transportation within five days of the date it was issued to Nelson, even though the offense occurred on March 15, 1996, and the report and notice form was stamped "Received Mar 14 1996."
Pavek v. Moore , 1997 ND 77 - Civil No. 960381 Suspension of plaintiff's commercial driving privileges was improper because the Department of Transportation Hearing Officer could not establish the time of driving and did not determine if an Intoxilyzer test was given within two hours of driving.
Service Oil, Inc. v. Chabot, et al. , 1997 ND 74 - Civil No. 960376 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.
State v. Breiner , 1997 ND 71 - Criminal No. 960298 In a misdemeanor sexual offense prosecution, when accepting a guilty plea, the trial court must impose a 10-year sex-offender registration requirement under NDCC 12.1-32-15. If the court fails to do so, the court abuses its discretion if it does not allow the defendant to withdraw the guilty plea later.
State v. Holy Bear , 1997 ND 67 - Criminal No. 960219 Conviction of gross sexual imposition affirmed under N.D.R.App.P. 35.1.
State v. Zahn , 1997 ND 65 - Criminal No. 960190 The trial court did not abuse its discretion in finding Zahn in contempt, because Zahn disobeyed a court order after being warned of possible contempt charges, and Zahn's conduct impaired the respect due the court.
Toth v. Disciplinary Board of the Supreme Court , 1997 ND 75 - Civil No. 960334 There was no clear and convincing evidence an assistant attorney general committed a misrepresentation under the disciplinary rules or violated a confidentiality clause in a settlement agreement.
Woodrow F. Moffett Trust v. Moffett , 1997 ND 78 - Civil No. 960290 Judgment of eviction is affirmed. The record reveals evidence that defendant received sufficient service of process and that the district court did not abuse its discretion by denying defendant's motion to dismiss the eviction action.
April 4, 1997
In re Lamont , 1997 ND 63 - Civil No. 960258 An attorney is suspended from the practice of law for 60 days for his deceptive and misleading testimony under oath.
April 1, 1997
Austin, f/k/a Glatt v. Towne, f/k/a Glatt , 1997 ND 59 - Civil No. 960215 Motion under N.D.R.Civ.P. 59(j) was timely. Defendant was not entitled to credit on his child support arrearage for social security dependency payments.
City of Williston v. Hegstad , 1997 ND 56 - Civil No. 960173 Argument to the jury by counsel must be confined to facts in evidence and the proper inferences that flow therefrom. A prosecutor's use of a defendant's post-arrest silence after receiving Miranda warnings to impeach the defendant's exculpatory story, told for the first time at trial, violates the defendant's right to due process. It is improper for a prosecuting attorney to vouch for the credibility of government witnesses in argument to the jury. Prosecutor's statement, in closing argument to the jury, that two testifying police officers' "job was to tell the truth," was improper argument.
Dvorak v. AgriBank, FCB , 1997 ND 53 - Civil No. 960338 Appeal from order denying motion to vacate judgment of dismissal with prejudice was summarily affirmed under NDRAppP 35.1(a)(4).
In re Estate of Wallace Zimmerman , 1997 ND 58 - Civil No. 960318 In unsupervised probate proceedings, a court order disposing of a spouse's claim against her deceased husband's estate is not appealable without a Rule 54(b) certification when the spouse has other claims pending against the estate.
Keator v. Gale , 1997 ND 46 - Civil No. 960242 The release of a vicariously liable master does not automatically release the servant from liability for his own direct negligence.
Loll v. Loll, n/k/a Weinbaum, et al. , 1997 ND 51 - Civil No. 960279 Custody and visitation order is affirmed in part and reversed in part. District court's decision to deny change in custody was not clearly erroneous, but requiring all visitation be supervised, and in North Dakota, was clearly erroneous. District court is further directed to terminate the children's intervention in the action.
Lovin v. Lovin n/k/a Borchert , 1997 ND 55 - Civil No. 960189 After an original custody judgment has been entered, the significant-change-of-circumstances standard for custody modification proceedings governs any subsequent attempt by the noncustodial parent to obtain custody, and a motion for new trial based on newly discovered evidence is not an available alternative.
Matter of Estate of Ruben Peterson , 1997 ND 48 - Civil No. 960241 The district court properly accomplished the testator's intent of equal distribution by ordering unequal distribution of the probate estate, so each of the nine beneficiaries would, in fact, share equally when the amounts distributed from the testator's P.O.D. accounts were considered in conjunction with their share from the probate estate. The district court did not err in approving payment of the personal representative's fees and attorney fees from the estate. The personal representative did not breach her fiduciary duty by failing to invest the funds from a certificate of deposit in an interest bearing account.
Medcenter One, Inc. v. North Dakota State Board of Pharmacy , 1997 ND 54 - Civil No. 960299 When there are no factual issues to be determined by an administrative agency, a nonagency party's failure to exhaust administrative remedies does not preclude an action for declaratory relief to construe an unambiguous statute. The exemptions to the requirements for majority ownership by a pharmacist in NDCC 43-15-35(5) are unambiguous and do not differentiate between retail and hospital pharmacies. NDCC 28-32-21.1 authorizes attorneys' fees in any civil judicial proceeding for judicial review of a final agency order, or for judicial review under NDCC Ch. 28-32 of the legality of agency rulemaking action or a rule adopted by an agency, if the court finds in favor of the nonagency party and, in the case of a final agency order, determines the agency acted without substantial justification.
Owan v. Owan , 1997 ND 50 - Civil No. 960235 Remanding the custody decision and instructing the district court to make specific findings of fact regarding the allegations of domestic violence on both parents. If the district court determines there is credible evidence of domestic violence on both parties, the district court must determine whether the domestic violence of either party is significantly greater than that inflicted by the other, and whether that finding requires any change in its award of custody.
State v. Christensen , 1997 ND 57 - Criminal No. 960293 Trial court's decision to allow evidence of defendant's prior acts with victim of gross sexual imposition was not in error for the prior acts did not create a Rule 404(b), N.D.R.Evid., issue, nor did the trial court err in asking the jury to isolate particular testimony it requested be read.
State v. Garcia , 1997 ND 60 - Criminal No. 960180 The defendant's right to a public trial was not violated when the trial court temporarily terminated expanded media coverage and partially closed the trial during the testimony of a 15 year-old accomplice who was reluctant to testify. Sufficient evidence corroborated the accomplice's testimony. The defendant was not denied his due process right to a fair trial when the State charged him with a street-gang crime and voluntarily dismissed the charge after its case-in-chief. The juvenile defendant's sentence to life imprisonment without parole is not cruel and unusual punishment within the meaning of the Eighth Amendment. The Eighth and Fourteenth Amendments placed no constitutional duty upon the trial court to affirmatively seek out mitigating circumstances before sentencing the defendant to life imprisonment without parole when the defendant himself did not offer any mitigating circumstances.
Steen v. North Dakota Department of Human Services , 1997 ND 52 - Civil No. 960128 Department's decision to terminate a personal service provider's status for five years was supported by a preponderance of the evidence. Sanction, although harsh, was not an abuse of the Director's discretion.
Steffes v. Steffes , 1997 ND 49 - Civil No. 960188 A child support obligor is entitled to a credit for post-majority support withheld from his wages under an income withholding order whenever the conditions for support specified in the judgment are not satisfied. The amount of the obligor's credit is calculated under the child support guidelines and not by a pro rata deduction for the children who do not satisfy the conditions for post-majority support.
Stout v. Stout , 1997 ND 61 - Civil No. 960150 When considering a request to move a child out of North Dakota, trial courts are to apply a four factor analysis to the facts of each case with the primary concern being the best interests of the child.
Sumra v. Sumra , 1997 ND 62 - Civil No. 960129 A trial court reviewing a motion to change the residence of a child to another country must apply the four factor analysis enunciated in Stout v. Stout, 1997 ND 61.
Traynor v. Leclerc/ ND Workers Compensation Bureau v. Leclerc , 1997 ND 47 - Civil No. 960373 NDCC 29-15-21 allows any party to a civil or criminal action to obtain a change of judge by filing a written demand for change of judge, and it does not violate the separation of powers under the constitution.