Wenzel Estate v. Wenzel
, 2008 ND 68,
747 N.W.2d 103
A trial court's findings in a partition action will not be reversed on appeal unless they are clearly erroneous.
A trial court's equitable powers in partition actions do not include the power to order one party to buy out the other party's share of jointly owned property.
Otto v. State
, 2006 ND 233,
725 N.W.2d 588
Denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
State v. Sevigny
, 2006 ND 211,
722 N.W.2d 515
Evidence of an alibi defense may be excluded if a defendant fails to give sufficient notice of his intent to present evidence of an alibi.
A defendant has a right to give testimony about an alibi, even if the defendant fails to give notice of the defense and all alibi evidence is excluded.
A district court must make sufficient findings of fact when admitting or excluding testimony about a child's out-of-court statements about sexual abuse.
A district court has wide discretion over the mode and order of interrogating witnesses and presenting evidence.
Intentional disobedience of a court order constitutes contempt.
Livinggood v. Balsdon
, 2006 ND 215,
722 N.W.2d 716
On remand, a district court may, unless otherwise specified, make its decision on the basis of the evidence already before it or may take additional evidence. The decision on taking additional evidence will be reversed only if the district court
abuses its discretion.
Forcible ejectment or exclusion from real property is a conclusion of law fully reviewable on appeal.
Forcible ejectment from real property does not require the actual application of physical force; rather, it is enough if it is present and threatened, and is justly to be feared. This standard requires only that the plaintiff had reason to believe
that he would be put out by the application of physical force if he did not obey.
The appropriate standard of review in an appeal challenging a district court's award of damages in a bench trial is whether the district court's findings of fact on damages are clearly erroneous.
A district court must award treble damages if it concludes that one person forcibly ejected or excluded another from real property.
Tibert v. City of Minto
, 2006 ND 189,
720 N.W.2d 921
A decision of a local governing body will be affirmed on appeal unless the local governing body acted arbitrarily, capriciously, or unreasonably, or there is not substantial evidence to support the decision.
Stein v. Workforce Safety and Ins.
, 2006 ND 34,
710 N.W.2d 364
A court cannot ignore the clear language of a statute under the guise of liberal construction.
A recalculation of average weekly wage under N.D.C.C. 65-05-09(1) is authorized only if the employee is able to return to employment for twelve consecutive months or more before the recurrence of the disability that is the subject of the
recalculation.
Livinggood v. Balsdon
, 2006 ND 11,
709 N.W.2d 723
Damages for breach of a farm lease beyond one year are not speculative and uncertain as a matter of law but may be speculative and uncertain as a matter of fact.
The party seeking specific performance has the burden of proving the party is entitled to it and the standard for proving entitlement to specific performance is higher than the standard for proving entitlement to money damages.
Damages must be proved.
Estate of Littlejohn
, 2005 ND 113,
698 N.W.2d 923
The interpretation of an attorney in fact's authority under a power of attorney is generally governed by the rules for construing contracts.
Tibert v. Slominski
, 2005 ND 34,
692 N.W.2d 133
The agricultural nuisance shield of N.D.C.C. 42-04-02 extends to all corporations and limited liability companies that meet the requirements of N.D.C.C. 42-04-01 regardless of whether they meet the more limited requirements of the corporate farming
law.
A claim for trespass cannot stand unless the evidence demonstrates an actual interference with the property of another.
Heinz v. Heinz
, 2004 ND 66,
688 N.W.2d 402
Amended divorce judgment summarily affirmed under N.D.R.App.P. 35.1(a)(2).
State v. Ballweg
, 2003 ND 153,
670 N.W.2d 490
Facts in a search warrant affidavit are not misleading if there was no reckless or deliberate falsity nor omitted information that would have negated probable cause.
A high degree of suspicion attaches to the collective purchase of ingredients and supplies used to manufacture methamphetamine.
The combination of the presence of anhydrous ammonia, the collective purchase of an amount of Sudafed inconsistent with personal use and other supplies used to manufacture methamphetamine, and concealment of a garage creates a substantial basis to
conclude probable cause exists to search a premises for a methamphetamine manufacturing operation.
Neidviecky v. Neidviecky
, 2003 ND 29,
657 N.W.2d 255
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.
State v. Maurstad
, 2002 ND 121,
647 N.W.2d 688
Challenges to probationary searches, authorized by a probationer's conditions of probation, are reviewed under the standard of whether the search was reasonable, after examining the totality of the circumstances, including whether the search was
performed in a reasonable manner.
Whether a probationary search was conducted as a subterfuge for a criminal investigation is no longer considered.
Nowling v. BNSF Railway
, 2002 ND 104,
646 N.W.2d 719
Under N.D. Const. art. XII, sec. 13, the right of way for an operating railroad line is a public highway that is not subject to adverse possession or acquiescence.
State v. Disbrow
, 2002 ND 73,
647 N.W.2d 706
The defendant's conviction on multiple counts of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(1).
Interest of M.C.H.
, 2001 ND 205,
637 N.W.2d 678
Juveniles between the ages of seven and fourteen have no common law right to a presumption of incapacity to commit a crime, because the criminal capacity of children between the ages of seven and fourteen has been declared by statute.
Selzler v. Selzler
, 2001 ND 138,
631 N.W.2d 564
A court, for good cause, may excuse a custody investigator from attending the entire proceedings, but only if the court makes reasonable accommodations to preserve the parties' right to examine the investigator in light of all of the testimony
given.
The credibility of witnesses, including expert witnesses, and the weight to be given their testimony are questions of fact subject to the clearly erroneous standard of review.
A presumption against awarding custody to a parent who has sexually abused a child arises if the abuse resulted in serious bodily injury, involved the use of a dangerous weapon, or constituted a pattern within a reasonable time proximate to the
proceeding.
Lake Region Lutheran Home, Inc. v. Halvorson
, 2000 ND 193,
622 N.W.2d 432
An appeal from a trial court's judgment dismissing a motion to vacate judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4) (the trial court did not abuse its discretion).
State v. Sommer
, 2000 ND 68,
617 N.W.2d 131
D.U.I. conviction summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).