Abdi v. State, 2000 ND 64 Before accepting a defendant's guilty plea, a trial court need not readvise the defendant of rights under N.D.R.Crim.P. 11, if the court determines the defendant previously was properly advised of those rights and recalls the advice. The N.D.R.Crim.P. 11(c) requirement that the trial court inquire whether the defendant's willingness to plead guilty resulted from discussions between the prosecution and the defendant is to alert the court of plea negotiations so it can inquire further about the negotiations and the defendant's understanding of any agreement. An applicant for post-conviction relief bears a heavy burden of proving trial counsel's assistance was ineffective, and there is a strong presumption counsel's conduct falls within the range of reasonableness.
March 27, 2000
Roe v. Rothe-Seeger, 2000 ND 63 The authority to issue supervisory writs is discretionary, and cannot be invoked as a matter of right. The authority to issue supervisory writs is exercised rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases in which there is no adequate alternative remedy.
March 24, 2000
Wachter v. Gratech Co. Ltd., 2000 ND 62 Conditions precedent may be waived, either expressly or by implication. The amount of damages caused by a breach of contract is a finding of fact which will not be reversed on appeal unless it is clearly erroneous. A plaintiff in an abuse of process action must show actual damages suffered as a result of the abuse of process. In an abuse of process action, attorney fees and costs are not recoverable.
March 23, 2000
Dan Nelson Construction v. Nodland & Dickson, 2000 ND 61 In a legal malpractice action based on an attorney's alleged negligent failure to appeal, both the merits and probable outcome of the appeal are questions of law and subject to summary judgment. A government construction contract's requirement for prompt written notice of changed conditions is to permit early investigation and informed decision making. A "changed conditions" clause is interpreted based on what the contractor knew, or should have known, under the circumstances. Lawrence v. N.D. Workers Compensation Bureau, 2000 ND 60 The Workers Compensation Bureau may consult with its outside litigation counsel when reviewing a pending administrative law judge recommendation, but those consultations may not be ex parte. An injured worker is justified in refusing a transitional job offer if a reasonably prudent person would refuse the offer under the same or similar circumstances.
March 21, 2000
Bleth v. Bleth, 2000 ND 52 To prevail on appeal, an issue must be properly raised in the district court, and a record created for informed appellate review. Braunberger v. Interstate Engineering, Inc., 2000 ND 45 A party cannot be awarded costs and disbursements under a vacated judgment. A prevailing parties who receives a judgment less favorable than the N.D.R.Civ.P. 68 offer are entitled to pre-offer costs, but must pay both parties' post-offer costs. Recovery of costs is not limited to admissible evidence. Unless authorized by statute, attorney meal and hotel expenses cannot be awarded as costs and disbursements. DeCoteau v. State, 2000 ND 44 To establish ineffective assistance of counsel, the defendant must prove his counsel's performance was defective, and his defense was prejudiced by the proven defect. An unsuccessful trial strategy does not make defense counsel's performance defective. Dinger v. Strata Corporation, 2000 ND 41 Where multiple parties are involved, a court may order dismissal of some of the defendants; however, the order remains subject to revision until either a final judgment adjudicating all the claims against all the parties is entered or the court certifies there is no just reason for delay and expressly directs entry of judgment in favor of the dismissed defendants. A motion to reconsider may be treated like a motion to alter or amend a judgment. Elshaug v. N.D. Workers Compensation Bureau, 2000 ND 42 Ex parte communications between the Workers Compensation Bureau's outside and in-house attorneys violate N.D.C.C. 28-32-12.1(3). An appropriate remedy for improper ex parte communication occurring after the ALJ recommends the Bureau deny a claim is to reverse the Bureau's denial of the claim and remand for an evidentiary rehearing. Goff v. Goff, 2000 ND 57 When a guardian ad litem files an investigative report with the district court, the parties must have a opportunity to call and cross-examine the guardian ad litem. In the Interest of S.R.A., 2000 ND 46 In a paternity action, if the alleged father fails to appear for or refuses to submit to genetic testing, the court may direct entry of a judgment by default. Interest of K.M.G., 2000 ND 50 A custody order cannot be modified for two years after entry unless the court finds: (a) a persistent and willful denial or interference with visitation; (b) the child's present environment may endanger the child's physical or emotional health or impair the child's emotional development; or (c) the primary physical care of the child has changed to the other parent for longer than six months, and the modification is necessary to serve the best interest of the child. Kryzsko v. Ramsey County SSB, 2000 ND 43 A one-person household with total assets of more than $3,000.00 is not eligible for Medicaid benefits An asset must be available to the applicant to be counted as an asset for purposes of Medicaid. Support trusts are considered available to the beneficiary. Mellum v. Mellum, 2000 ND 47 A trial court's rationale for distributing property must be discernible. A trial court may award a greater amount of property to a spouse in lieu of spousal support where there are sufficient income-producing assets to achieve self-sufficiency. A finding of contempt will not be reversed unless there is a clear abuse of discretion. Mountrail County v. Hoffman, 2000 ND 49 A county may sue for abatement of a public nuisance caused by a junkyard and auto graveyard located within 1,000 feet of a state highway. A local zoning ordinance cannot contravene federal or state law. Exercise of the police power to abate a public nuisance does not entitle a property owner to compensation. N.D. Dept. of Human Services v. Caroline, 2000 ND 59 The Department of Human Services may recover Medicaid benefit payments from assets transferred by the Medicaid recipient to a surviving spouse and traceable to the surviving spouse's estate. Only assets in which the deceased recipient once held an interest can be traced. The surviving spouse's separately owned assets in which the recipient never held an interest are not subject to recovery. O & K Glass Co. v. Innes Construction Co., 2000 ND 56 This Court will not vacate an arbitration award unless it is "completely irrational," An arbitrator's mere mistake as to fact or law is not a sufficient ground to overturn an arbitration award. Pierce v. Shannon, 2000 ND 54 Absent an allegation of concerted action, there is no action for contribution among joint tortfeasors. Smith v. N.D. Workers Compensation Bureau, 2000 ND 51 Injury caused by the illegal use of a controlled substance is noncompensable under workers compensation law. Spath v. State, 2000 ND 40 Post-conviction relief judgment summarily affirmed under N.D.R.App.P. 35.1(a)(2). State v. Abdullahi, 2000 ND 39 Deportation and mandatory, indefinite detention under federal immigration laws are collateral consequences of a guilty plea to a state criminal charge, and a trial court need not advise a defendant about those consequences before accepting a guilty plea. State v. Bell, 2000 ND 58 A criminal defendant who escapes after appealing forfeits and abandons the appeal. State v. Farok, 2000 ND 48 Order denying withdrawal of guilty plea summarily affirmed under N.D.R.App.P. 35.1(a)(7). State v. Fraser, 2000 ND 53 A jury may infer from the surrounding facts and circumstances whether the defendant engaged in conduct "knowingly." Evidence corroborating an accomplice's testimony need not be incriminating itself, and is sufficient if it relates to a material fact and tends to connect the defendant to the crime. Ziegelmann v. TMG Life Insurance Co., 2000 ND 55 Although insurance policies are adhesion contracts and ambiguities are resolved in favor of the insured, the court will not rewrite a contract to impose liability on an insurer if the policy unambiguously precludes coverage.
March 3, 2000
Van Valkenburg v. Paracelsus Healthcare Corp., 2000 ND 38 A viable claim for damages defeats a mootness challenge. A contract is construed as a whole to give meaning to each provision. A party resisting a motion for summary judgment must present competent admissible evidence that raises an issue of material fact. The due process and hearing provisions of a hospital's medical staff bylaws are not implicated unless a physician's medical and clinical privileges are revoked or suspended for reasons bearing on professional competency, conduct, or character.