Little v. Traynor , 1997 ND 128 - Civil No. 960283 The Workers Compensation Bureau's adoption of an $85-per-hour maximum hourly rate and various fee caps to compensate a claimant's attorney in N.D.A.C. 92-01-02-11.1(1) and (3)(b) through (i) was based on an adequate administrative rulemaking record and was not an arbitrary or capricious application of its statutory authority. The Bureau's adoption in N.D.A.C. 92-01-02-11.1(9)(e) of a $100 limit for reimbursement of a claimant's reasonable and necessary costs, unless approved by the Bureau in advance of their accrual, was not beyond the scope of the Bureau's authority. The district court did not abuse its discretion in ordering the Bureau to pay the nonadministrative parties' attorney fees under N.D.C.C. 28-32-21.1 for responding to the Bureau's motion for leave to pursue discovery of irrelevant material.
June 25, 1997
Petition for Reinstatement of Heusis , 1997 ND 127 - Civil No. 970139 Petitioner reinstated to Bar of State of North Dakota, with five-years of supervised probation.
June 24, 1997
Bigwood, et al. v. City of Wahpeton, et al. , 1997 ND 124 - Civil No. 970003 The City Council's decision to conduct hearings on a zoning amendment concurrently with the city planning commission did not violate the City's zoning amendment ordinance, which is modeled after N.D.C.C. 40-47-04.
Blanchard v. N.D. Workers Compensation Bureau , 1997 ND 118 - Civil No. 970013 Absent a bureau request for a designated administrative law judge to issue a final order, an administrative law judge's decision in a worker's compensation case was a recommendation. NDCC 28-32-13(3) authorizes, but does not require, the bureau to adopt rules for review of an administrative law judge's recommendation. The bureau must adequately explain its reason for rejecting an administrative law judge's recommendation and for disregarding medical evidence favorable to the claimant.
In Interest of J.C.S., a Child , 1997 ND 126 - Criminal No. 970004 Sufficient evidence existed to find juvenile committed conspiracy to commit unlawful entry into or concealment within a motor vehicle.
Lindteigen v. City of Bismarck , 1997 ND 123 - Civil No. 960375 The City Commission's denial of an application for a special use permit to locate a private airport in a residential area adjacent to a city was not arbitrary, capricious, or unreasonable.
Ratajczak v. Ratajczak , 1997 ND 122 - Civil No. 960367 A letter written to the district court under Rule 7.1(b)(1), N.D.R.O.C., is part of the record on appeal. Under the facts of this case, wife did not waive right to spousal support by not specifying in the interrogatories the amount of spousal support she would require. Marital misconduct is only one of the Ruff-Fischer guidelines and does not in and of itself automatically preclude an award of spousal support as a matter of law. "Condonation" under N.D.C.C. ch. 14-05 does not prevent relevant evidence of spousal abuse from being admitted to determine spousal support.
State v. Brossart , 1997 ND 119 - Criminal No. 960331 A farmer who plows an unimproved section line does not violate the criminal statute prohibiting section line plowing, unless it obstructs usual travel. A trial court should normally instruct a jury only on the specific offense charged that is supported by the evidence.
State v. DeCoteau , 1997 ND 121 - Criminal No. 960324 Conviction of gross sexual imposition summarily affirmed under N.D.R.App.P. 35.1(a)(3).
Tooley v. Moore , 1997 ND 120 - Civil No. 970078 An officer does not deny an arrested driver the reasonable opportunity to obtain an independent saliva test when the test is not reasonably available.
Towne v. Dinius , 1997 ND 125 - Civil No. 960388 The purchaser of a vehicle can sue the seller for fraud and breach of warranty based upon statements made by the seller's agent in negotiations. Statements made during contract negotiations which are offered to prove the terms of the contract are not hearsay.
June 10, 1997
Disciplinary Board v. Schultz , 1997 ND 117 - Civil No. 970138 Lawyer's certificate of admission to the bar suspended for 90 days because of the unlicensed practice of law and dishonest conduct toward his employer.
June 5, 1997
Adams County Record v. Greater North Dakota Association , 1997 ND 116 - Civil No. 960365 The trial court's finding that the Greater North Dakota Association is not an organization supported by public funds and, therefore, is not subject to the open records law was not clearly erroneous. Mutuality of obligation, apart from legal consideration, is not necessary to create a binding unilateral contract. The state's agreement to provide the Greater North Dakota Association monetary reimbursement when the Association published Horizons magazine constituted a bargained-for exchange of money and services, rather than public support.
June 3, 1997
Burr v. Kulas, et al. , 1997 ND 98 - Civil No. 960384 RICO statute of limitation, Chapter 12.1-6.1, N.D.C.C., rather than the statute of limitation in actions against state or its employees, 28-01-22.1, N.D.C.C., applies to RICO claim. Trial court's summary judgment on statute of limitation grounds was improper because questions of fact regarding plaintiff's RICO claim still existed.
City of Fargo v. D.T.L. Properties, Inc. , 1997 ND 109 - Civil No. 960272 An action to reform a quit claim deed is governed by the ten-year statute of limitations in N.D.C.C. 28-01-15(2). The trial court's finding of a mistake in the execution of the quit claim deed was not clearly erroneous, and reformation of the deed was proper.
Dinius, n/k/a Oswald v. Dinius , 1997 ND 115 - Civil No. 960287 The district court's judgment finding the father to be a perpetrator of domestic violence and granting the mother custody of their children is clearly erroneous. The alleged violence committed by the father may have constituted permissible parental discipline under N.D.C.C. 12.1-05-05(1), but in any event did not constitute domestic violence under N.D.C.C. 14-09-06.2(1)(j). The 1997 legislative amendment to N.D.C.C. 14-09-06.2(1)(j), which clarifies the degree of violence necessary to invoke the presumption, provides guidance for cases before the effective date. "The domestic violence presumption" is not invoked when the alleged conduct did not involve serious bodily injury or suggest a pattern of domestic violence, and was too remote in time.
Glaspie v. Little , 1997 ND 108 - Civil No. 960305 Section 54-23.3-04(16), N.D.C.C., which authorizes the Director of the Department of Corrections and Rehabilitation to collect a supervision fee from persons on probation, creates a civil fee, not a new condition of probation. Collection of supervision fees from persons on probation prior to the effective date of Section 54-23.3-04(16) for supervision occurring after that date is not a retroactive application of the statute in violation of Section 1-02-10, N.D.C.C.
Hamich, Inc. v. State of North Dakota, Tax Department , 1997 ND 110 - Civil No. 960330 The Tax Commissioner had the statutory authority to require two North Dakota corporations which conducted no out-of-state business to file corporate income tax returns for tax years 1986 through 1991 using the single entity method rather than the combined report method they preferred. This requirement was not contrary to public policy and did not violate the taxpayers' equal protection rights.
In the Interest of E.H., a Child , 1997 ND 101 - Civil No. 970033 In a paternity action, the trial court erred in using income averaging, rather than the obligor's actual annual net income, to determine child support arrears.
In the Interest of L.D.C. , 1997 ND 104 - Civil No. 960291 A trial court may not award child support less than the child support guidelines when the court made no findings to justify a deviation.
Jensen v. North Dakota Workers Compensation Bureau , 1997 ND 107 - Civil No. 960351 Statutory amendments may not operate retrospectively to abrogate contractual or vested rights. 1989 amendment to 65-05-08, N.D.C.C., providing if workers compensation disability benefits are discontinued, a later award of benefits may not commence more than thirty days before the claimant's written notice of reapplication, irrespective of injury date, is not applicable to a claimant who had a vested right to resume receiving disability benefits when his compensable injury again became disabling and benefits suspended by the Bureau due to a recovery of damages in a third-party personal injury lawsuit were liquidated.
Larson v. North Dakota Department of Transportation , 1997 ND 114 - Civil No. 970043 Detention of intoxicated person for detoxification without notifying family will not lead to dismissal of driver's license suspension, unless the detention actually prejudices the intoxicated person. There is no systematic disregard for the law when an arresting officer makes an individualized determination that a driver's detention for detoxification is necessary to protect the driver and others.
Matter of Adoption of J.M.H. , 1997 ND 99 - Civil No. 960270 The evidence clearly and convincingly supported the termination of an indigent inmate's parental rights under N.D.C.C. 14-15-19(3)(b). The procedures for terminating the inmate's parental rights did not deprive him of due process and his conclusory allegations were insufficient to show ineffective assistance of counsel.
McArthur v. North Dakota Workers Compensation Bureau , 1997 ND 105 - Civil No. 960273 An appeal from a notice of entry of judgment will be treated as an appeal from the judgment. An informal decision of the Workers Compensation Bureau is not appealable.
Mertz v. Arendt , 1997 ND 113 - Civil No. 960301 The trial court's finding that a son acquired farm property through an executed parol gift from his parents was not clearly erroneous.
Messer v. Bender , 1997 ND 103 - Civil No. 960304 The Supreme Court will not consider issues not raised or preserved below.
Ostafin v. State , 1997 ND 102 - Criminal No. 960243 Trial court's determination that plea agreement in which defendant waived good time reduction was illegal affirmed. Trial court's decision to allow defendant to choose whether to have court correct illegal sentence or withdraw guilty plea reversed and case remanded to correct illegal sentence to conform to intent of original plea bargain.
Russell v. Moore , 1997 ND 111 - Civil No. 970070 To support a driver's license suspension, a chemical test must be performed within two hours of driving. When more than one reasonable inference can be made from the evidence, a reviewing court must affirm the inference made by the hearing officer.
State v. Antoine , 1997 ND 100 - Criminal No. 960364 A defendant may not indicate by his actions at trial his apparent acquiescence in his attorney's decision that he not testify, and then later argue he was silenced against his will. The defendant's ineffective assistance of counsel argument should be raised at a proceeding for post-conviction relief. The conviction of simple assault and preventing arrest is affirmed.
State v. Eldred , 1997 ND 112 - Criminal No. 960315 Section 62.1-02-01(2), N.D.C.C., a five-year prohibition for possessing a firearm, applies to all felonies, excluding those committed with violence and intimidation, for which a ten-year prohibition applies.