Abel v. Allen, 2002 ND 147 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. Bender v. Beverly Anne, Inc., 2002 ND 146 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. Boehm v. Boehm, 2002 ND 144 The decision to grant or deny a motion for continuance is within the trial court's discretion, and its determination will not be overturned absent an abuse of discretion. A trial court's marital property valuations within the range of evidence are not clearly erroneous. In setting the child support obligation, a trial court uses the most recent information available. City of Fargo v. Wonder, 2002 ND 142 When questioning of a suspect does not arise in a "booking" setting, is related to an element of the suspected crime, and is reasonably likely to elicit an incriminating response, the "booking exception" to Miranda does not apply. The administration of a breath test to determine alcohol consumption is a search. Only items actually in the record may be included in the appendix on appeal. Comstock Construction, Inc. v. Sheyenne Disposal, Inc., 2002 ND 141 A trial court's denial of a motion for new trial on the basis of sufficiency of the evidence is reviewed under the abuse-of-discretion standard. N.D.R.Civ.P. 6(e), which authorizes the addition of three days whenever a party has a set period to do an act after service of notice or other paper by mail, applies to the time for commencing and filing an action after a written demand is served on a lienholder. State v. Berger, 2002 ND 143 The beginning date of a probationary term is determined by the intent of the sentencing court as expressed in the language that created the probationary status. A condition of probation capable of more than one construction is to be construed in favor of the offender. State v. Yineman, 2002 ND 145 To challenge a conviction based on the weight of the evidence, a defendant must make an appropriate motion to adequately preserve the issue for appeal. To preserve the issue of sufficiency of the evidence for review, a defendant in a criminal jury trial must move for a judgment of acquittal under N.D.R.Crim.P. 29, although no motion for a judgment of acquittal is necessary in a bench trial.
August 23, 2002
Grey Bear v. N.D. Department of Human Services, 2002 ND 139 The statutory assignment granted to the Department of Human Services from a recipient of Medicaid benefits is for any third-party recovery a recipient may have for an injury, but is limited to the amount of medical costs provided by the Department for that injury. A trial court does not abuse its discretion by refusing to delete an amendment to a judgment that was originally requested by the party seeking to delete the amendment. A trial court lacks personal jurisdiction over a party when the party was neither served with a summons, nor made a voluntary general appearance. Mr. G's Turtle Mountain Lodge v. Roland Township, 2002 ND 140 An attempted appeal from a judgment that has been voluntarily paid and formally satisfied of record fails for lack of jurisdiction. Summary judgment is appropriate when a party fails to establish the existence of a material factual dispute on an essential element of his claim on which he will bear the burden of proof at trial. A communication is not libelous if the language used is not fairly susceptible of a defamatory meaning.
August 22, 2002
Hoffman v. N.D. Workers Compensation Bureau, 2002 ND 138 The Workers Compensation Bureau has an obligation to explain its disregard of evidence favorable to a claimant. A willful failure to give a maximum consistent effort during a functional capacity evaluation can constitute an act of noncompliance with vocational rehabilitation.
August 20, 2002
U S Bank v. Koenig, 2002 ND 137 Grants in a deed are interpreted in favor of the grantee, except a reservation in any grant is interpreted in favor of the grantor. Repugnant words in a deed must be reconciled by interpreting the deed in a manner that gives effect to the repugnant clause subordinate to the general intent and purpose of the deed.
August 15, 2002
BeauLac v. BeauLac, 2002 ND 126 To find a person in contempt of a prior court order, that person must have had actual notice or knowledge of that order. Although the courts do not look favorably upon separating siblings in custody cases, a split custody award is not absolutely prohibited where the trial court finds that type of custody arrangement desirable under the circumstances. Although a trial court should make specific factual findings and conclusions regarding the statutory presumption against awarding custody to a person who has perpetrated domestic violence, specific findings are not required when there is insufficient evidence of domestic violence to trigger the presumption. Geinert v. Geinert, 2002 ND 135 A modification of child support should generally be made effective from the date of the motion to modify, absent good reason to set some other date. If the trial court sets some later date, it must specifically explain its reasons for doing so. Imputing income to a child support obligor who has voluntarily changed employment, but is not unemployed or underemployed, is within the discretion of the trial court. Howes v. Kelly Services, Inc., 2002 ND 131 In considering a motion for judgment as a matter of law, a trial court must view the evidence in the light most favorable to the non-moving party and must accept the truth of the evidence presented by the non-moving party and the truth of all reasonable inferences from that evidence which supports the verdict. Once one party files a demand for a nine-person jury, other parties are entitled to rely on that demand for the issues it covers, and they need not file their own demand for a nine- person jury. Interest of D.Z., 2002 ND 132 To show a respondent is a person requiring treatment, the petitioner must prove by clear and convincing evidence that the person is mentally ill and there is a reasonable risk that, if the person is not treated, he poses a serious risk of harm to himself, others, or property. A person who is found to require involuntary treatment has the right to the least restrictive conditions necessary to achieve the purposes of the treatment. Meide v. Stenehjem, 2002 ND 128 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. New Town Public School District v. State Board of Public School Education, 2002 ND 127 An administrative agency may deviate from a prior decision if it rationally explains the reason for its departure. Appellate court gives appreciable deference to agency expertise if the subject matter of agency decision is technical. A party raising a constitutional claim must provide persuasive authority and reasoning or forego the constitutional challenge entirely. Roe v. Doe, 2002 ND 136 Under N.D.R.Civ.P. 60(b)(iv), the burden is on the moving party to show sufficient grounds exist for disturbing the finality of a judgment. A judgment entered without subject matter jurisdiction is void. State courts may not exercise jurisdiction over a paternity and support action if state court jurisdiction would infringe on an Indian tribe's right to govern itself. In general, tribal courts do not have exclusive jurisdiction over claims against tribal defendants that arise outside of the reservation. To vacate a state court judgment on the paternity of an Indian child, the moving party must show that the state court lacked jurisdiction as a matter of law. Rush v. N.D. Workers Compensation Bureau, 2002 ND 129 A claimant seeking benefits from the workers compensation fund must establish by a preponderance of the evidence that the medical condition for which benefits are sought is causally related to the work injury. Sjostrand v. N.D. Workers Compensation Bureau, 2002 ND 125 The Workers Compensation Bureau's termination of an injured worker's disability benefits for a false claim or false statement, without first providing an opportunity for an evidentiary hearing, does not violate the worker's right to due process of law. The Bureau's findings on a false claim or false statement must be affirmed if they are supported by a preponderance of the evidence. State v. Bell, 2002 ND 130 Expert witnesses may testify when no objection is made as to their expertise and qualifications. Effective assistance of counsel is not denied when counsel fails to ask for an instruction that no longer applies. State v. Keilen, 2002 ND 133 While the right to appeal is statutory, statutes conferring the right must be liberally construed. The State has the burden to show a warrantless search falls within an exception to the warrant requirement. There is no community caretaking role to fill when there is no disturbance and no one is in need of assistance. Ziegelmann v. DaimlerChrysler Corporation, 2002 ND 134 An alleged product defect that has not manifested itself in such a way as to cause an observable adverse physical or economic harm does not constitute an injury that will support a class action lawsuit based on theories of negligence, fraud, and deceit.