Moen v. Meidinger , 1998 ND 161 Whether statements constitute a personal guaranty is a question of fact. For an instrument to be enforceable as a guaranty, it must show, with reasonable clarity, an intent to be liable on an obligation in case of default by the primary obligor. The parties' mutual assent to a contract is determined by their objective manifestations of contractual assent, not their secret intentions.
August 24, 1998
Rydberg, et al. v. Johnson , 1998 ND 160 Past child support may be awarded in an action under N.D.C.C. ch. 14-17.
August 20, 1998
Peterson v. Dougherty Dawkins , 1998 ND 159 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.
August 19, 1998
Geck v. N.D. Workers Compensation Bureau , 1998 ND 158 To have a "compensable injury" under N.D.C.C. 65-01-02(9)(b)(6) (1995), a claimant must show the employment substantially aggravated or accelerated the latent and underlying condition to produce the result for which compensation is sought. The Supreme Court will reverse and remand if the Bureau does not adequately explain its disregard of medical evidence favorable to a claimant.
August 18, 1998
Ali v. Dakota Hospital , 1998 ND 145 Trial court's denial of a motion for a new trial is appropriate where the movant is unable to show the inappropriate comments made by opposing counsel during closing argument prejudiced the jury.
Ali v. N.D. Workers Compensation Bureau , 1998 ND 146 Under NDCC 65-05-28(4), the Bureau may suspend benefits (1) if the employee refuses to submit to, or intentionally obstructs, an "examination," or (2) if the employee refuses to reasonably participate in "treatment." A functional capacity evaluation conducted to determine the employee's ability to return to work was an "examination," and did not constitute "treatment."
Eagle v. N.D. Workers Compensation Bureau , 1998 ND 154 The rational basis standard of review applies to an equal protection challenge to the limitations on vocational rehabilitation benefits under N.D.C.C. 65-05.1-01(3) and 65-05.1-06.1(2)(i)(1). The rehabilitation limitations in N.D.C.C. 65-05.1-01(3) and 65-05.1-06.1(2)(i)(1) are rationally related to legitimate governmental purposes and do not violate the equal protection clauses of the state and federal constitutions.
Gessner v. City of Minot , 1998 ND 157 Service of a summons and complaint upon a city manager, instead of a member of the city's governing body, is insufficient to obtain personal jurisdiction over the city. Codefendants are united in interest, for purposes of having service upon one constitute service upon the other, only when the two parties are in such relation to each other with regard to the subject matter of the plaintiff's action that they will fall or stand together, a judgment against one will result in liability upon the other, and neither can raise a defense which is unavailable to the other. Genuine issues of material fact preclude summary judgment dismissal of claims a Water Management District was directly or vicariously liable for the drowning death of a child who fell from a flood control structure sponsored by the District.
Hageness v. Hageness, et al. , 1998 ND 147 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.
Larson v. Larson , 1998 ND 156 A motion to reopen is the proper procedure when a party wishes to submit additional evidence after the parties have rested and the hearing has concluded. Without a motion to reopen, a trial court errs by amending its decision on child support based upon affidavits submitted after the parties have rested, the hearing has concluded, and the court has issued its memorandum opinion.
Messiha v. State of North Dakota, et al. , 1998 ND 149 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.
Millang v. Hahn , 1998 ND 152 A trial court abuses its discretion in an order of contempt by imposing punitive sanctions without following the requisite procedure provided in N.D.C.C. 27-10-01.3.
Ohio Casualty Ins. Co. v. Clark , 1998 ND 153 An insurer has no duty to provide a defense in an action that would yield no possibility of liability to its insured. An intentional act exclusion in an insurance policy excludes liability for intentional, willful, or criminal acts. A jury's determination in a criminal case that an insured was not acting in self defense when he shot and killed another may be res judicata, precluding relitigation of the issue of self defense in a later civil action.
Severson v. Severson , 1998 ND App 6 - Court of Appeals The trial court's child custody award and distribution of marital property were not clearly erroneous.
State v. Kinsella , 1998 ND 155 A state which accepts an out-of-state probationer under the Interstate Compact for Supervision of Parolees and Probationers may impose its own conditions on the probationer.
State v. Messner , 1998 ND 151 A trial court does not abuse its discretion by allowing a social worker to testify about what an alleged child-victim said when interviewed where there were sufficient guarantees of trustworthiness of the victim's out-of-court statements. An accused's confrontation rights are not violated when the child is available for cross-examination.
State v. Weatherspoon , 1998 ND 148 Generally, admission of evidence tending to establish an accused had been willing or unwilling to take a lie detector test is improper. It is not an abuse of discretion to exclude polygraph evidence when the parties did not stipulate to its admissibility and the proponent did not present scientific evidence of the reliability of the results of polygraph examinations. Evidence that health care providers deemed counseling to be necessary or advisable treatment is relevant and admissible in a sexual imposition case.
Swenson v. Raumin , 1998 ND 150 The party seeking rescission of a settlement agreement under N.D.C.C. 9-09-04 has the burden of proving reasonable diligence to promptly rescind upon discovering facts entitling the party to rescind, as well as proving an offer to restore to the other contracting party everything of value received under the settlement agreement.
August 14, 1998
McKibben v. Grigg , 1998 ND App 5 - Court of Appeals 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.