City of Fargo v. Erickson, 1999 ND 145 If probable cause for an arrest for driving under the influence is not an issue at trial, evidence of consent to take a preliminary breath test is irrelevant and inadmissible. A nonconstitutional error is harmless if the erroneously admitted evidence was not prejudicial and did not affect the party's substantial rights. Eckman v. Stutsman County, 1999 ND 151 A trial court does not abuse its discretion in denying a motion for a change of venue when there is no evidence in the record that holding a trial in the courthouse where the accident occurred denied the plaintiff a fair and impartial trial. Flattum-Riemers v. Flattum-Riemers, 1999 ND 146 Where a trial court enters an order in a divorce action, the appropriate time to raise arguments concerning the validity of the order is prior to the entry of the judgment or in an appeal from the judgment, rather than in response to a trial court's order to show cause for failing to follow the order. Gullickson v. Torkelson Brothers, Inc., 1999 ND 155 An employer does not breach a duty to an injured employee when the employer is not aware of the danger that injures the employee. Haag v. Noetzelman, 1999 ND 157 A trial court's findings as to the method and cost of repairing the deficient construction will not be reversed when supported by reasonable evidence in the record. In interpreting a contract, provisions must be considered in the context of the entire contract. Henderson v. Henderson, 1999 ND 156 Under the Uniform Interstate Family Support Act, a child support obligor may contest the validity or enforcement of a child support order if the order has been vacated, suspended, or modified by a later order, or if full payment has been made. Interest of T.J.K., 1999 ND 152 Although the Supreme Court examines the evidence in a juvenile case in a manner comparable to the former procedure of trial de novo, a juvenile case will be remanded for more explicit findings of fact when there is a discrepancy in trial testimony and more than one plausible explanation for the judicial referee's decision. Ketelsen v. Ketelsen, 1999 ND 148 A trial court cannot consider issues of property division and spousal support separately, in a vacuum, but must examine those issues together. A trial court's modification of spousal support based upon changed circumstances is a finding of fact which will not be set aside on appeal unless it is clearly erroneous. Richter v. Houser, 1999 ND 147 Courts do not apply the child support guidelines in a vacuum but must use common sense and consideration of the circumstances in determining an obligor's income and support obligation. In an appropriate case, a trial court, to determine if the obligor was underemployed, may consider what a person with similar work history and occupational qualifications could earn at job sites both within and outside the community. N.D.C.C. 14-09-14 does not bar a court from awarding past due child support based upon the defendant parent's legal obligation to provide support. Rowley v. Cleaver, 1999 ND 158 A district court has exclusive continuing jurisdiction over child support when the court made the initial award and one of the parties continues to live in North Dakota. Service of process is valid under N.D.R.Civ.P. 5 for notice of a hearing to change the amount of child support. Saari v. N.D. Workers Compensation Bureau, 1999 ND 144 The right to workers compensation permanent partial impairment benefits vests on the date the impairment is determined, not on the date of injury or the date of maximum medical improvement. Rights and obligations under the Workers Compensation Act are statutory, not contractual, in nature. Schumacher v. Schumacher, 1999 ND 149 Where allegations of domestic violence by one party do not rise to the level triggering the domestic violence presumption, specific factual findings regarding the effect the allegations have on the presumption are not required. Where no objection was made to questions regarding rehabilitative spousal support and party continued with cross-examination on the issue, the issue was tried by the implied consent of the parties. Where an obligor fails to present the information necessary to calculate income, the obligor is precluded from asserting the income calculation based on what little evidence was presented is clearly erroneous. State v. Burr, 1999 ND 143 Requiring sexual offender registration by those convicted before adoption of the registration statute is not punishment and is not an ex post facto clause violation. State v. Stewart, 1999 ND 154 The administrative remedy for making a false claim or false statements to the Workers Compensation Bureau is a civil sanction, and the double jeopardy clause does not bar a subsequent criminal prosecution for the same conduct. Tibor v. Tibor, 1999 ND 150 The statute governing change of residence of minor children applies where parents have joint custody. Vernon v. N.D. Workers Compensation Bureau, 1999 ND 153 The Workers Compensation Bureau must adequately explain its rationale for rejecting a hearing officer's recommendation. 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.
July 20, 1999
Prairieview Nursing Home v. N.D. Dep't of Human Services, 1999 ND 142 If a contract is unambiguous, the parties' intent at the time the contract was entered must be ascertained from their agreement. The interpretation of an unambiguous contract to determine its legal effect is a question of law. The Department of Human Services' expertise in setting medicaid reimbursement rates is entitled to appreciable deference.
July 19, 1999
Jones v. Meyer, 1999 ND 141 Trial court judgment awarding damages for sexual harassment, intentional infliction of emotional distress, assault and battery summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4).
July 15, 1999
Love v. DeWall, 1999 ND 139 When a custodial parent relocates with the child to another state, the trial court may, when appropriate, award visitation to grandparents who previously had custody. Morrell v. N.D. Dep't of Transportation, 1999 ND 140 Driver is denied procedural due process where the hearing notice wrongly states the proposed suspension period is for 91 days, rather than 365 days.
July 14, 1999
State v. Leinen, 1999 ND 138 N.D.R.Ev. 801(d)(1)(ii) does not allow prior consistent statements merely because a witness has been discredited, or to bolster the veracity of the witness's story. To qualify a statement as nonhearsay under N.D.R.Ev. 801(d)(1)(ii) the declarant must have testified and been subject to cross-examination about the statement, the statement must be offered to rebut a charge of recent fabrication or improper motive or influence, and the statement must be a prior consistent statement made before the charge of recent fabrication or improper influence arose.
July 13, 1999
Ackerman v. Ackerman, 1999 ND 135 District court's findings under the best-interests-of-the child test should be consistent and clear. District court must award child support where an interim custody award is made. City of Fargo v. Rockwell, 1999 ND 125 A defendant's continued requests for a new court-appointed attorney after the trial court clearly denied his initial request must be considered the functional equivalent of a voluntary waiver of his right to counsel. A defendant may voluntarily, knowingly, and intelligently waive his right to counsel after being advised of the dangers and disadvantages of self-representation. There is no constitutional right to standby counsel. Gajewski v. Dornacker, 1999 ND 124 A district court's dismissal for lack of jurisdiction is summarily affirmed under N.D.R.App.P. 35.1(a)(6), because the appeal was filed in the wrong county. Greenwood v. Greenwood, 1999 ND 126 The trial court has broad discretion in evidentiary matters, and its rulings will only be reversed if its discretion has been abused. A spousal support award may be modified upon a showing of a material change in circumstances, which is something substantially affecting the financial abilities or needs of a party. The district court's determination of an unforseen material change in circumstances justifying a reduction of spousal support is a finding of fact that will not be set aside on appeal unless it is clearly erroneous. Generally, a spousal support obligor's remarriage does not justify modification of spousal support. Midwest Casualty Ins. Co. v. Whitetail, 1999 ND 133 When the issues of policy coverage and an insurance company's duty to defend hinge upon a material fact question, N.D.C.C. 32-23-09 authorizes and contemplates resolution of the fact question in a declaratory judgment action brought by the insurer. Ringsaker v. Director, N.D. Dep't of Transportation, 1999 ND 127 When the Intoxilyzer prints an incorrect date, and the State Toxicologist does not testify, the Department has failed to show the test was fairly administered. Romanyshyn v. Fredericks, 1999 ND 128 A trial court's oral findings of fact may be used to explain its written findings of fact. State v. Miller, 1999 ND 123 Conviction for terrorizing is summarily affirmed under N.D.R.App.P. 35.1(a)(3). State v. Syvertson, 1999 ND 134 An initial interview without Miranda warnings does not necessarily taint a subsequent interview with Miranda warnings. A false assurance to a suspect that he is not in danger of prosecution is not coercion. A trial judge is not prohibited from prematurely learning of the State's dangerous special or habitual offender notice. Results of a pretrial competency evaluation cannot be used at sentencing when the defendant has not presented mental-status evidence. Harmless-error analysis applies to the admission of psychiatric evidence in violation of a defendant's fifth amendment right against self-incrimination. State v. Syvertson, 1999 ND 137 A trial judge is not prohibited from prematurely learning of the State's dangerous special or habitual offender notice. The fourth amendment inquiry of an inventory search turns not on the issue of probable cause, but on the issues of whether the vehicle was properly impounded and the search was carried out in accordance with standard police procedures. A determination of the admissibility of an out-of-court photographic identification involves a two-step inquiry: whether the photographic identification procedure was suggestive, and whether the identification was able under the totality of the circumstances. Two or more offenses may be charged in separate counts in the same complaint if they are of the same or similar character or are based upon the same act or transaction. State v. Treis, 1999 ND 136 A conviction will not be reversed, despite errors in the judgment and the correction of the judgment, if the defendant was tried and convicted of the charge in the complaint. The Sixth Amendment right to compulsory process does not require a defendant have unfettered subpoena power. Strom-Sell v. Council for Concerned Citizens, 1999 ND 132 A trial court's denial of a motion for summary judgment does not preclude it from considering a subsequent motion for summary judgment by the same party. Officers, directors, and agents are not generally liable for a corporation's debts, absent fraud, other recognized extraordinary circumstances, or a specific statutory provision imposing liability. Tormaschy v. Tormaschy, 1999 ND 131 Waiver is an issue of fact reviewed under the clearly erroneous standard. Generally, issues not raised and adequately presented to the district court for a proper determination will not be considered on appeal. Treiber v. Elmer, 1999 ND 130 Only a party with a legal interest that has been directly and adversely affected by the district court's judgment or order may appeal to the Supreme Court. Partition is available only when there are cotenants with current possessory interests in the property. Clerical or typographical errors in a statute will be disregarded when the legislature's intent is clear. Unser v. N.D. Workers Compensation Bureau, 1999 ND 129 The willful failure to report outside sources of income to the Bureau results in forfeiture of all future benefits. A willful failure to report income impedes the Bureau's process of determining benefit eligibility and is a material violation justifying reimbursement to the Bureau of benefits erroneously paid.
July 7, 1999
Judicial Conduct Commission v. Hoffman, 1999 ND 122 A former judge who resigned from office is subject to attorney discipline for conduct occurring while he was a judge.