Questa Resources v. Stott, 2003 ND 51 A foreign corporation creating and enforcing a security interest by way of a mortgage is not required to obtain a certificate of authority in this state prior to bringing an action to foreclose the mortgage. Skjervem v. Minot State University, 2003 ND 52 When no pertinent evidence on an essential element of a party's claim is presented in resistance to a motion for summary judgment, it is presumed no such evidence exists.
March 26, 2003
American Nat'l Fire Ins. Co. v. Hughes, 2003 ND 43 An insurer is precluded from obtaining subrogation from its insured. For purposes of subrogation, a closely held corporation's officers and employees may be implied co-insureds under a policy insuring the corporation's property. Amyotte v. Rolette County Housing Authority, 2003 ND 48 A landlord's duty to protect others from harm by an animal on the premises arises only when the landlord knows that the animal is dangerous and presents an unreasonable risk of harm. An issue of fact becomes a question of law if reasonable persons could reach only one conclusion from the evidence. City of Grand Forks v. Ramstad, 2003 ND 41 To establish a Brady violation, the defendant must show the prosecution withheld evidence which was favorable to him. A defendant alleging a Brady violation must show he could not have obtained the undisclosed evidence with reasonable diligence. Under N.D.R.Crim.P. 16, the prosecution has a duty to provide documents in the possession of the State Toxicologist's office, even if the defendant could have otherwise obtained the documents himself. Grinnell Mutual Reinsurance Co. v. Center Mutual Ins. Co., 2003 ND 50 Liability coverage for bodily injury because of an auto accident results under an insurance policy if the use of the auto arises out of the inherent nature of the auto. For a person to be a gratuitous employee, that person's employer must have expressly or impliedly requested the employee's help. Policy coverage cannot be defeated simply because a separate excluded risk constitutes an additional cause of the injury. Implied indemnity for settlements is allowed if the indemnitee has a reasonable belief of potential liability, even though it is ultimately determined that the indemnitee had no interest to protect. The right to sue for implied indemnity does not arise until the indemnitee has suffered actual loss through payment, settlement, or through the injured party's obtaining an enforceable judgment against the indemnitee. Gronfur v. N.D. Workers Compensation Fund, 2003 ND 42 When reapplying to resume discontinued disability benefits, a claimant must prove an actual wage loss caused by a significant change in the compensable medical condition. For an actual wage loss, a claimant must have been earning wages from employment when the change in medical condition occurred causing at least a partial loss of those wages. Judicial Vacancy in District Judgeship No. 7, East Central District, 2003 ND 49 Court orders Judgeship No. 7, with chambers in Hillsboro, East Central Judicial District, be retained and filled. Koehler v. County of Grand Forks, 2003 ND 44 A plaintiff alleging a failure-to-promote discrimination claim under the North Dakota Human Rights Act must show: (1) she was a member of a protected group; (2) she was qualified and applied for a promotion to an available position; (3) she was rejected; and (4) a similarly qualified employee who was not part of a protected group was promoted instead. An ongoing personality conflict does not transform into an actionable disability claim merely because one party becomes disabled. Morris v. Job Service North Dakota, 2003 ND 45 A claimant for unemployment benefits has the burden of establishing the claimant, rather than the claimant's employers, contributed to a pension fund, to avoid the pension offset provisions of N.D.C.C. 52-06-02(15). The pension offset provisions of N.D.C.C. 52-06-02(15) do not distinguish between amounts contributed to a pension fund by an employer and amounts contributed to a pension fund by an employer under the directives of a collective bargaining agreement. Steinbach v. State, 2003 ND 46 A trial court can summarily dispose of a post-conviction relief application for misuse of process. Process is misused when the defendant: (1) inexcusably fails to raise an issue on direct appeal and now seeks review in an application for post-conviction relief; (2) inexcusably fails to pursue an issue on appeal which was raised at the trial court; (3) inexcusably fails to raise an issue in an initial post-conviction relief application. Although a party seeking a summary disposition bears the initial burden of showing there is no genuine issue of material fact, that burden may be shifted to the nonmoving party once the moving party points out to the district court there is an absence of evidence to support the nonmoving party's case. Weaver v. State, 2003 ND 47 A trial court properly grants summary disposition of an application for post-conviction relief when the State's motion for summary disposition meets the initial burden of showing the application does not raise a genuine issue of material fact. Wilson v. State, 2003 ND 40 A judgment summarily denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (6).
March 5, 2003
Berger v. Holt, 2003 ND 34 A parent's legal obligation to support his or her child continues when the child is placed in foster care. City of Jamestown v. Tahran, 2003 ND 35 A criminal ordinance prohibiting the storage of junk on any private property, except in an enclosed building or on the premises of a licensed junk dealer, in a city is not a zoning ordinance. D.D.I., Inc. v. State Tax Commissioner, 2003 ND 32 A facially discriminatory tax may survive Commerce Clause scrutiny if the tax is a compensatory or complementary tax designed to make interstate commerce bear a burden already born by intrastate commerce. For a facially discriminatory tax to be a valid compensatory tax, the state must identify the intrastate tax burden for which the state is attempting to compensate, the tax on interstate commerce must be shown roughly to approximate, but not exceed, the amount of the tax on intrastate commerce, and the events on which the interstate and intrastate taxes are imposed must be substantially equivalent. In determining whether a tax is discriminatory, the risk of multiple taxation may be considered in assessing a Commerce Clause claim and the internal consistency doctrine does not require other states to actually impose a tax similar to the challenged tax. N.D.C.C. 57-38-01.3(1)(g) is unconstitutional. Hegland v. McKechnie, 2003 ND 37 The details of prior private discipline should not be alleged in a petition for public discipline. Expert testimony about whether or not a rule of professional conduct has been violated is inappropriate in disciplinary proceedings. Jensen v. State, 2003 ND 28 An order summarily denying an amended application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6). Murchison v. State, 2003 ND 38 A court may deny a post-conviction application on the grounds of misuse of process when a defendant inexcusably fails to pursue an issue leading to judgment of conviction, inexcusably fails to pursue an issue on appeal having raised the issue in the trial court, or inexcusably fails to raise an issue in an initial post-conviction proceeding. A court may deny a post-conviction application on the grounds of res judicata if the same claims have been fully and finally determined in a previous proceeding. Neidviecky v. Neidviecky, 2003 ND 29 In reviewing a trial court's award of custody between two fit parents, the Supreme Court will not retry the case or substitute its judgment for that of the trial court. Prior to making an equitable distribution of the marital property in a divorce action, the trial court must include as part of the marital estate all of the parties' assets, regardless of the source, and the court must include as marital debt all loans, including those incurred prior to the marriage or after the parties separated. Peltier v. State, 2003 ND 27 Upon revocation of probation, the court is not bound by the terms of the plea agreement and may sentence a defendant to any sentence that was available at the time of the initial sentencing. Simpson v. Chicago Pneumatic Tool Co., 2003 ND 31 A trial court's discovery decision and denial of a motion for new trial will not be reversed on appeal unless the court abused its discretion. State v. Anderson, 2003 ND 30 Even if there was a motion in limine, failure to object at trial operates as a waiver of the claim of error unless the alleged error amounts to an obvious error affecting the substantial rights of the defendant. A trial court does not err in admitting letters a defendant wrote to the victim if the letters were evidence of the ongoing course of conduct between the defendant and the victim with which the defendant was charged in the complaint. State v. Jahner, 2003 ND 36 Failure to raise an appropriate objection in the trial court waives the right, and the issue cannot be raised for the first time on appeal. Waiver applies to all rights and privileges to which a person is legally entitled when they are for the benefit of and rest in the individual who waived them. A trial court is neither required to nor prohibited from instructing the jury on proof beyond a reasonable doubt. Strict standards of logical consistency need not be applied to jury verdicts in criminal cases. The standard for reconciling a jury verdict is whether the verdict is legally inconsistent. State v. Klose, 2003 ND 39 After an insanity defense is raised by the defendant, the State must prove beyond a reasonable doubt that the defendant was sane at the actual moment of the offense. A verdict is not inconsistent when it is permissible under the law and facts of the case. Photographs in a homicide trial can be admitted into evidence under appropriate circumstance even if they tend to excite the emotions of the jury. A defendant may waive the right to have a jury's question answered in open court. Superpumper, Inc. v. Nerland Oil, Inc., 2003 ND 33 Lack of finality in an arbitration decision is not sufficient ground to overturn an award. An arbitration decision may be upheld on appeal even if it is based on a mistake of fact or law or has a possibility of being brought to court at some later date on an issue not fully addressed by the arbitrator.