Estate of Lutz, 2000 ND 226 Whether services performed by a family member are so exceptional and extraordinary as to imply a contract to pay for those services is a question of fact. Lack of legal advice to a prospective spouse to obtain independent counsel is a significant factor in weighing the voluntariness of a premarital agreement, but the presence of independent counsel is not a prerequisite to enforceability. Separate statutes under the Uniform Premarital Agreement Act govern unconscionability at the time the agreement was executed, unconscionability at the time of separation or marital dissolution, and unconscionability that may result from enforcement at any time, including the time of death. A spouse can waive any right of inheritance and succession in a valid and enforceable premarital agreement and consent to will. Attorney fees are not allowed to a successful litigant unless expressly authorized by statute or agreement. Jacobson v. North Dakota Workers Compensation Bureau, 2000 ND 225 A willful false claim or false statement is sufficiently material for forfeiture of future benefits if it is a statement which could have misled the Bureau in a determination of the claim. Before terminating a claimant's disability benefits, due process requires the Bureau to give the claimant pre-termination notice of its intent to terminate benefits, a summary of the evidence, and an opportunity to respond. The post-deprivation hearing must be provided at a meaningful time, as required by the due process clause.
December 27, 2000
Berger v. North Dakota Workers Compensation Bureau, 2000 ND 224 An owner of a business is not entitled to workers compensation benefits without securing optional coverage. In determining whether a claimant was an employee or an owner when he was injured, the rules for determining whether a person is an independent contractor or an employee, do not apply, and the Bureau may consider other evidence or factors. State v. Helmenstein, 2000 ND 223 Voluntariness of a confession is determined by the totality of the circumstances, focusing on the characteristics and condition of the accused at the time of the confession, as well as the details of the setting in which the confession was obtained. Miranda warnings are required when a person is in custody and is interrogated. Custody is a mixed question of law and fact and is fully reviewable on appeal. The requirement of bringing a person before a magistrate without unnecessary delay is a factor to consider in evaluating the voluntariness of a confession. Unnecessary delay depends upon the circumstances of each case. A change of venue rests in the sound discretion of the trial court and will not be reversed absent an abuse of discretion. A defendant challenging a denial of a change of venue must establish prejudice or establish that a fair and impartial jury could not be empaneled. State v. Nowik, 2000 ND App 1 - Court of Appeals The appellant's conviction for driving a vehicle with a suspended license is summarily affirmed by the Court of Appeals. No person has a constitutional right to operate a motor vehicle on the roads of this state without a valid driver's license.
December 21, 2000
Davenport v. State, 2000 ND 218 Although a trial court must inform a defendant of all direct consequences of a guilty plea, it need not advise a defendant of collateral consequences The requirement for registration of a convicted sex offender is a collateral consequence. Disciplinary Board v. Keller, 2000 ND 221 Once objections are filed by an attorney to a hearing panel's findings and recommendations, the appropriate procedure to address a claim of lack of notice of order for default is to move the Supreme Court to remand the matter to the Hearing Panel for consideration of a motion to vacate. In the Interest of C.R.H., 2000 ND 222 In terminating parental rights under N.D.C.C. ch. 27-20 the trial court has no authority to make the termination contingent on the terminated parents receiving visitation rights upon the child's adoption. Mondry v. Mondry, 2000 ND 216 Judgment valuing and distributing marital property and awarding attorney fees is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4). Pfeifle v. Tanabe, 2000 ND 219 A lessee may terminate a lease and vacate the premises when the lessor fails to secure quiet possession of the premises within a reasonable time, considering the cumulative effect of long-standing and continuous problems. Before vacating premises, a lessee must give notice to a lessor by requests to repair dilapidations or to secure quiet possession of leased property; however, such notice need not be in writing. A lessee does not waive a right to terminate a lease by remaining in possession for a period after alleged problems occurred, when the problems continued throughout the period and the lessee repeated complaints and requests for repairs during the period. Redfield v. Bitterman, 2000 ND 217 Absent an abuse of discretion, the supreme court will not set aside a trial court's order on a motion for an extension of time to appeal, based upon excusable neglect. Section 50-24.1-07, N.D.C.C., does not authorize recovery of medical assistance benefits from the estate of a recipient's spouse who predeceases the recipient, beyond assets to which the recipient had a legal title or interest. State v. Lee, 2000 ND 215 Judgment of conviction for the felony offense of bail jumping is summarily affirmed under N.D.R.App.P. 35.1(a)(3). Superpumper, Inc. v. Nerland Oil, 2000 ND 220 The automatic bankruptcy stay applies to actions against a non-debtor codefendant where there is such an identity between the debtor and the codefendant that the debtor is the real party defendant and a judgment against the codefendant is, in effect, a judgment against the debtor.
December 12, 2000
Lawrence v. Delkamp, 2000 ND 214 Under N.D.C.C. 14-09-06.2(1)(j), threats can constitute domestic violence for purposes of restricting visitation only if they constitute the infliction of fear of imminent physical harm. Matrix Properties Corp. v. TAG Investments, 2000 ND 213 District court's post-judgment order summarily affirmed under N.D.R.App.P. 35.1 (a)(1). State v. Glass, 2000 ND 212 DUI is a strict liability offense for which a jury instruction on culpability is not required. Failure to preserve an objection or make an offer of proof precludes a later assertion of error unless a defendant establishes obvious error affecting the defendant's substantial rights. Obvious error is recognized only with extreme caution.
December 11, 2000
Syvertson v. Malaktaris, 2000 ND 211 Judgment dismissing a complaint under Rule 12(b), N.D.R.Civ.P., is summarily affirmed under N.D.R.App.P. 35.1.
December 7, 2000
Berlin v. State, 2000 ND 206 To establish ineffective assistance of counsel, the defendant must prove the counsel's performance was deficient and the deficient performance prejudiced the result. An application for post-conviction relief may be denied for misuse of process if the applicant presents a claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to judgment of conviction and sentence or in a previous post-conviction proceeding. Interest of W.E., 2000 ND 208 To terminate parental rights, a three-part test must be satisfied by clear and convincing evidence: (1) the child is deprived; (2) the conditions and causes of deprivation are likely to continue; and (3) the child is suffering or will suffer serious physical, mental, moral, or emotional harm. Review of a termination proceeding is similar to a trial de novo, with appreciable weight afforded to the juvenile court's decision. Jones v. Barnett, 2000 ND 207 An action to rescind a quitclaim deed is barred by the statute of limitations when the seller fails to submit evidence she did not discover until years later she had been fraudulently induced to convey the property, when her own pleadings indicate knowledge of material facts accruing beyond the six-year limit for fraud claims. The statute of frauds invalidates oral contracts for an interest in real property, and a contract action based on an alleged contract collateral to a quitclaim deed is barred by the statute of limitations when the alleged contract was executed beyond the six-year limit for contract actions. Logan v. Bush, 2000 ND 203 When a child support obligor voluntarily changes employment resulting in a reduction in income, income may be imputed without a showing that the obligor is unemployed or underemployed. Imputed income must be based upon an obligor's actual income in a prior twelve-month period, not upon the hypothetical amount the obligor would have earned had she remained at her prior job. "Extended visitation" warranting adjustment of child support is determined by the amount of visitation ordered, not the amount of visitation actually exercised. Summer visitation "not exceeding two months" is "extended visitation." A child support obligor who continues paying support after the support obligation for the oldest child had ceased is not entitled to a credit for "overpayment" when the amount was less than would have been due for the remaining children using current income under the guidelines. Mathre v. State, 2000 ND 201 Defense counsel should consult fully with the accused about any lesser included offenses the trial court may be willing to submit to the jury, but failure to do so is not always ineffective assistance of counsel. A defendant alleging ineffective assistance of counsel has a heavy burden to demonstrate her counsel's representation fell below an objective standard of reasonableness and she was prejudiced by counsel's deficient performance. Mayo v. Mayo, 2000 ND 204 In deciding a motion to modify custody, a trial court must consider whether there has been a significant change of circumstances and whether modification is necessary to serve the best interests of the child. The credibility of witnesses, including experts, and the weight to be given their testimony are questions of fact subject to the clearly erroneous standard of review. A trial court may question witnesses. Nodak Mutual Farm Bureau v. Kosmatka, 2000 ND 210 N.D.R.Civ.P. 54(b) allows final judgment adjudicating fewer than all claims or the rights and liabilities of fewer than all parties in multiparty litigation. Rule 54(b) certification requires a showing of extraordinary circumstances or that unusual hardship will result in the absence of review. Rule 54(b) certification is improper when subsequent proceedings in the trial court may render the appellate review moot. North Dakota Workers Compensation Bureau v. General Investment Corp., 2000 ND 196 Section 38-09-01, N.D.C.C., generally reserves fifty percent of all oil, natural gas, or minerals whenever the State transfers land owned by the State. The Workers Compensation Bureau may adjust or compromise claims upon defaults in the payment of premiums or premium installments. A quitclaim deed executed by the State reflecting a compromise and a settlement releasing the Workers Compensation Bureau's doubtful claim to land, and does not reflect a sale resulting in a transfer of land. O'Neill v. O'Neill, 2000 ND 200 A movant seeking change of custody, who brings allegations, supported by affidavit, demonstrating a custodial environment which may be endangering the childrens' physical or mental health, presents a prima facie case entitling the movant to an evidentiary hearing. If the allegations of a movant seeking a modification of child custody are so unfounded and unsupported as to render them false and not made in good faith, the court can award costs and reasonable attorney fees. Schultze v. Continental Ins. Co., 2000 ND 209 When several claims are made against an insured, an insurer has a duty to defend the entire lawsuit if there is potential liability or a possibility of coverage for one of the claims. Schumacher v. Schumacher, 2000 ND 195 Spousal support and child support order is summarily affirmed under N.D.R.App.P. 35.1(a)(2). State v. Erickstad, 2000 ND 202 A defendant seeking a change of venue for adverse pretrial publicity must demonstrate a reasonable likelihood of prejudice so pervasive that it is impossible to impanel a fair and impartial jury. When a party fails to object to a proposed instruction, fails to specifically request an instruction, or fails to object to omission of an instruction, the issue is not adequately preserved for appellate review and inquiry is limited to whether the jury instructions as given constitute obvious error. Evidence of value of a vehicle from the Kelley Blue Book Internet website may be admissible under the market report or commercial publication hearsay exception, N.D.R.Ev. 803(17). State v. Gehring, 2000 ND 199 Denial of a suppression motion and judgment entered on a conditional guilty plea are summarily affirmed. N.D.R.App.P. 35.1(a)(2). State v. Gleeson, 2000 ND 205 When there is sufficient doubt concerning a defendant's competency, a trial court must on its own motion conduct a hearing to determine whether the defendant is competent to stand trial. Inconsistent testimony at trial and confusion regarding administrative and criminal proceedings do not create a sufficient doubt of a defendant's competency so as to warrant a hearing on the issue. State v. Lunstad, 2000 ND 198 Conviction of surreptitious intrusion summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4). State v. Wilson, 2000 ND 197 Judgment of conviction for crime of accomplice to assault is summarily affirmed under N.D.R.App.P. 35.1(a) (3) and (7).