Roise v. Kurtz, 1998 ND 228 An objection not made in the trial court cannot be raised for the first time on appeal.
December 22, 1998
Barker v. Ness, 1998 ND 223 There is no absolute right to a jury trial in an equitable proceeding. Sections 9-09-02 to 9-09-04, N.D.C.C., are intended to permit a rescission at law, while N.D.C.C. 32-04-21 to 32-04-23 are intended to permit a suit in equity for rescission. Equitable rescission envisions restoration of both parties to the status quo prior to the transaction. Botnen v. Lukens, 1998 ND 224 Whenever specialized knowledge will assist the trier of fact in understanding the evidence or determining a fact in issue, expert testimony is admissible. An award of custody of a child to grandparents, rather than to one or both of the child's natural parents, is clearly erroneous unless exceptional circumstances require such a custody disposition in the best interests of the child. An alternating custody arrangement requires a factual finding it is in the child's best interest. Buffalo v. Buffalo, 1998 ND 208 Amended judgment terminating child support obligations summarily affirmed under N.D.R.App.R. 35.1(a)(2). Daley v. American States Preferred Ins. Co., et al, 1998 ND 225 Under a choice of laws analysis, the "significant contacts" test, a court determines all of the relevant contacts which might logically influence the decision of which law to apply, and then applies five choice-influencing factors to determine which state has the more significant interest with the issues raised. North Dakota law applies under the "significant contacts" test where both insureds are residents of North Dakota, the respective insurance contracts were negotiated and issued in North Dakota, all of the insured's medical expenses were paid in North Dakota, and only the location of the single vehicle car accident was in Minnesota. Domres v. Domres, 1998 ND 217 A motion to dismiss an appeal must be granted when the appeal is untimely under N.D.R.App.P. 4(a) because the notice of appeal was not filed within sixty days of actual notice of entry of judgment demonstrated on the record. Dundee Mutual Ins. Co. v. Marifjeren Farms, 1998 ND 222 When there is a conflict between an endorsement and other insurance policy provisions, the endorsement prevails. In an insurance policy endorsement covering potatoes in storage, the plain meaning of the word "damage" encompasses wind damage to power lines resulting in loss of power to the storage facility and loss of potatoes due to freezing. Estate of Victoria Jane Thompson, Deceased, 1998 ND 226 42 U.S.C. . 1396p(b)(4) authorizes the Department of Human Services to file a claim against the estate of a deceased spouse of a deceased recipient of medical assistance benefits for the amount of medical assistance paid out, to the extent the recipient at the time of death had any title or interest in assets which were conveyed to his or her spouse through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement. An obligation to repay medical assistance benefits arises upon receipt of the benefits. Gullickson v. Gullickson, 1998 ND 207 Divorce judgment summarily affirmed under N.D.R.App.P. 35.1(a)(2). Hollis v. Moore, Director, N.D. Dep't of Transportation, 1998 ND 210 A district court order affirming revocation of driver's license is summarily affirmed under N.D.R.App.P. 35.1(a)(5). Lee v. N.D. Workers Compensation Bureau, 1998 ND 218 Under N.D.C.C. 65-05-09.1, the Workers Compensation Bureau is entitled to offset one-half of social security benefits, less attorney fees, from a claimant's state disability payments. The offset under the statute applies even though the Social Security Administration has offset all or part of a claimant's partial impairment award from her social security benefit. Minot Town & Country v. Fireman's Fund Ins. Co., 1998 ND 215 An appraisal proceeding is not an arbitration proceeding. Arbitration generally decides an entire controversy, while an appraisal generally establishes the amount of loss only, and not liability under the insurance contract. When the proceeding defined in the insurance contract unambiguously calls for an appraisal proceeding, the Uniform Arbitration Act, N.D.C.C. ch. 32-29.2, does not apply. Reiswig v. Reiswig, 1998 ND 211 Divorce judgment summarily affirmed under N.D.R.App.P. 35.1(a)(2). Rodacker v. N.D. Workers Compensation Bureau, 1998 ND 209 Bureau's order terminating disability benefits summarily affirmed under N.D.R.App.P. 35.1(a)(5). Saakian v. N.D. Workers Compensation Bureau, 1998 ND 227 If a claimant is not unfairly surprised, had an opportunity to, and did, address the Workers Compensation Bureau's evidence on a disability question not precisely set forth in the specification of issues for an administrative hearing, the claimant has adequate notice that entitlement to disability benefits is an issue to be determined at the hearing on compensability of the claim. Res judicata only prohibits relitigation of a claim or issue resolved by a final administrative decision. The Bureau's adoption and amendment of an administrative law judge's recommendation does not transform the Bureau into a "hearing officer" for purposes of N.D.C.C. 28-32-12.2(1). Schmaltz v. Schmaltz, 1998 ND 212 A trial court may award custody of children to the father, when the father and mother are both well fit to care for them, the children expressed a preference to reside with their father and the father had been their primary caretaker and had formed a closer bond with them, even though he may have had an extramarital affair. Under the child support guidelines, the court can reduce an obligor's child support obligation if the court finds a reduced ability to pay because of travel expenses incurred by the obligor for visitations. Scott v. N.D. Workers Compensation Bureau, 1998 ND 221 Section 28-32-12.1(3), N.D.C.C., prohibits ex parte communications after a hearing between the attorney who represented an agency at a hearing and the decision maker who will decide whether to adopt or reject the ALJ's recommended decision. The Bureau's routine practice of improper ex parte communications constituted a systemic disregard of the law which warranted reversal. Smith v. Land O'Lakes, Inc., 1998 ND 219 To defeat summary judgment, a party must draw the court's attention to relevant evidence in the record raising an issue of material fact. Stanton v. Moore, Director, N.D. Dep't of Transportation, 1998 ND 213 A reasonable inference a person was the driver is sufficient to suspend a person's driving privileges under N.D.C.C. 39-20-05(2). State v. Hafner, 1998 ND 220 Under N.D.C.C. 42-01-15, the phrase "the punishment for which is not otherwise prescribed" is not an element of the offense of maintaining or committing a public nuisance. The agricultural operation defense to maintaining or committing a public nuisance under N.D.C.C. 42-04-02 is inapplicable "when a nuisance results from the negligent or improper operation of any such agricultural operation." State v. Lanctot, 1998 ND 216 In conducting a warrantless search incident to a custodial arrest, arresting officers may search the arrestee and the area within the arrestee's immediate control. State v. Vick, 1998 ND 214 Restitution orders are reviewed under an abuse of discretion standard. A trial court may order restitution paid to an insurance company which had not requested restitution and was not present at the restitution hearing. Under N.D.C.C. 12.1-32-08 the trial court's duty to order restitution does not change if restitution is not specifically requested. An insurance company can be a "victim or other recipient" to whom restitution may be awarded.