Garofalo v. St. Joseph's Hospital, 2000 ND 149 If the terms of a contract are ambiguous, extrinsic evidence regarding the parties' intent may be considered, and the terms of the contract and parties' intent are questions of fact, not questions of law. Kreidt v. Burlington Northern Railroad, 2000 ND 150 Although a party is entitled to instructions which present that party's theory of the case, the trial court is not required to instruct the jury in the exact language sought by a party if the court's instructions adequately and correctly inform the jury of applicable law. Refusal to give a sudden emergency instruction is not by itself error. The trier-of-fact may award interest in tort cases.
July 24, 2000
State v. Entzi, 2000 ND 148 Parties who want voir dire or arguments of counsel recorded must request they be recorded. A party's right to exercise peremptory challenges is not violated if the party uses a peremptory challenge to exclude a juror the trial court refused to excuse for cause and no biased jurors sit. Generally, a trial court has broad discretion in selecting a method by which it impanels a jury. A trial court's decision not to excuse a challenged juror for cause is reviewed under an abuse-of-discretion standard. A sentencing hearing should be held in the county where the trial was held.
July 20, 2000
Comes v. State, 2000 ND 142 Summary judgment denying post-conviction relief summarily affirmed under N.D.R.App.P. 35.1(a)(1). Cox v. Cox, 2000 ND 144 Nonpayment of support is an important consideration in determining whether a parent has abandoned a child, but it does not, in itself, constitute abandonment. A court cannot award custody to a third party rather than to a natural parent, under a "best interests of the child" test, unless it first determines that exceptional circumstances exist to trigger the best-interests analysis. Disciplinary Action Against Robb, 2000 ND 146 Disciplinary Counsel must prove each violation by clear and convincing evidence. When an attorney commingles part of a client's share of settlement proceeds with the attorney's own property, the attorney violates the duty to safekeep client property. Hill v. State, 2000 ND 143 An order granting a new trial is a final judgment under the Uniform Post-Conviction Procedure Act and is appealable. The defendant has a right to be present when testimony is read back to a jury. To uphold a conviction, the State must demonstrate a violation of the defendant's right to be present was harmless beyond a reasonable doubt. Holen v. N.D. Workers Compensation Bureau, 2000 ND 145 A claimant must demonstrate substantial prejudice to recover relief for delay in administrative proceedings. The Bureau must prove the claimant knew of specific work restrictions and intentionally engaged in activities exceeding those restrictions before it can deny benefits based on aggravation of a prior injury. Tulintseff v. Jacobsen, 2000 ND 147 Remand for clarification of findings of fact is unnecessary when, through inference or deduction, this Court can discern the rationale for the result reached by the trial court. A trial court's determination on whether the presumption against awarding custody to the perpetrator of domestic violence is applicable is a finding of fact which will not be reversed unless it is clearly erroneous.
Mead v. Farmers Union Mutual Ins. Co., 2000 ND 139 An insurer generally has a duty to defend an action against its insured if the allegations in the complaint give rise to the possibility of coverage under the insurance policy. A jury's finding in a criminal case that an insured acted intentionally and was not acting in self-defense when he killed another person is res judicata, precluding relitigation of the issue of intent in a later civil action.
Johnson Farms v. McEnroe, 2000 ND 137 Where the inconsistencies and ambiguities in the trial court's findings of fact and conclusions of law are incapable of reconciliation to support a judgment, reversal and remand for a new trial is required. One spouse cannot be divested of homestead rights by judicial proceedings in which only the other spouse is a party, even if title to the homestead property is in the name of the other spouse alone. N.D. Securities Commissioner v. Juran and Moody, Inc., 2000 ND 136 When an agency requests that the Office of Administrative Hearings designate an Administrative Law Judge to issue a final decision, and appeal is not expressly prohibited, the requesting agency may appeal.