State v. Ricker
, 2003 ND 143,
670 N.W.2d 359
Denial of a motion to suppress evidence is summarily affirmed under Rule 35.1(a)(2) and (3), N.D.R.App.P.
McMorrow v. State
, 2003 ND 134,
667 N.W.2d 577
An applicant for post-conviction relief has the burden of establishing grounds for relief.
A defendant alleging selective prosecution must show that the State has not generally prosecuted other similarly situated persons and that the State selected the defendant for prosecution for discriminatory reasons.
A defendant claiming ineffective assistance of counsel has the burden of proving counsel's performance was deficient and the deficient performance prejudiced the defendant.
A party waives an issue by not providing supporting argument, and without supportive reasoning or citations to relevant authorities, an argument is without merit.
State v. Matthews
, 2003 ND 108,
665 N.W.2d 28
A warrantless search of a dwelling for the purpose of investigation may be upheld under the emergency doctrine when the primary intent of the investigation is to render aid or assistance to someone in a dangerous situation.
An emergency doctrine search requires that: (1) the police have reasonable grounds to believe there is an emergency at hand and there is an immediate need for police assistance for the protection of life or property; (2) the search must not be
motivated primarily by intent to arrest and seize evidence; (3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.
State v. Moore
, 2003 ND 83,
662 N.W.2d 263
The right to appeal and the deadline for filing an appeal are statutory.
A defendant may not appeal the dismissal of a charge without prejudice.
State v. Keilen
, 2002 ND 133,
649 N.W.2d 224
While the right to appeal is statutory, statutes conferring the right must be liberally construed.
The State has the burden to show a warrantless search falls within an exception to the warrant requirement.
There is no community caretaking role to fill when there is no disturbance and no one is in need of assistance.
State v. Aipperspach
, 2002 ND 40,
642 N.W.2d 532
Denial of motion to suppress and judgment of conviction for abuse of child in violation of N.D.C.C. 14-09-22 summarily affirmed under N.D.R.App.P. 35.1(a)(2).
State v. Roberson
, 2002 ND 24,
639 N.W.2d 690
While a defendant's disruptive conduct in court may, in some instances, be sufficient grounds to require a competency hearing, not all disruptive defendants are incompetent to stand trial. Rather, the conduct may be contempt of court.
City of Fargo v. Steffan
, 2002 ND 26,
639 N.W.2d 482
The arrest of a person in a public place for a public offense committed in the officer's presence is neither a violation of the United States' nor North Dakota's Constitution.
Under the search and seizure jurisprudence of both the United States Supreme Court and the North Dakota Supreme Court, an open doorway is a public place.
State v. Perreault
, 2002 ND 14,
638 N.W.2d 541
A motion to dismiss tests the sufficiency of the information, but does not serve as a device for summary trial of the evidence.
A trial court may not grant a pretrial motion to dismiss based on a defense which raises factual questions embraced in the general issue of the defendant's guilt.
City of Fargo v. Tipler
, 2002 ND 8,
638 N.W.2d 45
Juries do not have a right to decide a case contrary to law or fact, but instead, must accept the law from the trial court and apply the law to the facts.
Warner and Company v. Solberg
, 2001 ND 156,
634 N.W.2d 65
North Dakota's restraint of business statute prohibits an excessive restraint on a person's exercise of a lawful profession, trade, or business.
If an unreasonable restraining clause can be separated leaving a reasonable agreement, the reasonable clause will be sustained and the unreasonable restraining clause rejected.
Rodenburg v. Fargo-Moorhead Y.M.C.A.
, 2001 ND 139,
632 N.W.2d 407
In reviewing a jury's findings, the evidence is viewed in the light most favorable to the verdict and the court determines only if substantial evidence supports it.
A motion for a new trial is addressed to the sound discretion of the trial court.
If nonresidents purposely direct their activities toward North Dakota, a North Dakota court may be justified in exercising personal jurisdiction over them.
Under North Dakota's comparative fault law, "fault" includes negligent and intentional conduct; a negligent tortfeasor's conduct is compared with an intentional tortfeasor's conduct, and their liability is several, not joint, with each being liable
only for the amount of damages attributable to that party.
Rask v. Nodak Mutual Ins. Co.
, 2001 ND 94,
626 N.W.2d 693
In determining whether a vehicle is an underinsured motor vehicle, only the policy insuring that motor vehicle is considered.
ND Fair Housing Council, Inc. v. Peterson
, 2001 ND 81,
625 N.W.2d 551
Attorney General's opinions interpreting statutes do not bind the Court but will be followed if persuasive. Attorney General's opinions are afforded even greater consideration when they have been impliedly adopted by the legislature.
Refusing to rent to an unmarried couple because they are seeking to cohabit is not unlawful under the discriminatory housing practices provision of the North Dakota Human Rights Act.
Dahlberg v. Lutheran Social Services
, 2001 ND 73,
625 N.W.2d 241
An employer is not contractually bound to follow a progressive discipline policy where an employee handbook and the progressive discipline policy, construed as a whole, preserved the employment at-will presumption.
A plaintiff claiming intentional infliction of emotional distress must show extreme and outrageous conduct that exceeds all possible bounds of decency.
A prima facie case for retaliatory discharge requires an employee to show the employee has engaged in protected activity, the employer took adverse action against the employee, and the existence of a causal connection between the employee's protected
activity and the employer's adverse action.
To be protected activity, an employee's report of a violation or suspected violation of law must be made for the purpose of exposing an illegality, and the reporter's purpose must be assessed at the time the report is made.
Global Acquisitions, LLC v. Broadway Park Limited Partnership
, 2001 ND 52,
623 N.W.2d 442
In a bench trial, the court must make findings of fact and conclusions of law sufficient to enable the appellate court to understand the factual determination and the basis for the conclusions of law and the judgment entered.
Reliance on the conduct of the party against whom equitable estoppel is asserted must be reasonable, and there must be some form of affirmative deception by that party.
Horsley v. ND Workers Comp.
, 2001 ND 60,
623 N.W.2d 377
Before a valid judgment can be entered, an order for judgment is required.
An appeal may be taken from a judgment entered without an order for entry of judgment if the trial court intended to dispose of the case and intended that a judgment be entered and if an order for judgment is implicit in the trial court's memorandum
opinion.
Bublitz, DC Marketing v. Tsang,
, 2000 ND 100,
617 N.W.2d 131
Judgment in contract dispute summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (2).
Matrix Properties Corp., fka E.W. Wylie Corp. v. TAG Investments
, 2000 ND 88,
609 N.W.2d 737
Where the exercise of an option to purchase does not provide for payment of the purchase price coincident with the optionee's exercise of the option, payment of the purchase price is merely an incident of performance of the bilateral contract created
by exercise of the option.
Exercise of an option must be unconditional. A contract with a provision allowing one party to rescind if certain requirements are not to their "satisfaction" is not conditional because an objective standard is employed in interpreting it.
Van Valkenburg v. Paracelsus Healthcare Corp.
, 2000 ND 38,
606 N.W.2d 908
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.
Lyon v. Ford Motor Company
, 2000 ND 12,
604 N.W.2d 453
A party who voluntarily pays and satisfies a judgment waives the right to appeal from the judgment.
Powers v. Job Service
, 1999 ND 162,
598 N.W.2d 817
A claimant for unemployment compensation benefits must show good cause for not timely filing a continuing claim for benefits.
A new hearing is required where a finding is not responsive to a claimant's excuse for late filing of a claim card.
Interest of D.S.A.
, 1999 ND 100,
598 N.W.2d 860
Order requiring treatment at the North Dakota State Hospital summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Hawkinson v. Hawkinson
, 1999 ND 58,
591 N.W.2d 144
The fourth factor in Stout v. Stout is rephrased as: "The potential negative impact on the relationship between the noncustodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate
basis for preserving and fostering the noncustodial parent's relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation."
Stuart v. Stammen
, 1999 ND 38,
590 N.W.2d 224
When a party has a right of first refusal on specified property, the seller cannot add additional property and make it part of the package, thereby forcing the option holder to purchase the additional property to exercise the option.
Industrial Commission v. Wolf
, 1999 ND App 2,
588 N.W.2d 590
An error of law in trial court proceedings does not divest the trial court of subject matter jurisdiction.
An assignee of an instrument acquires the rights of the assignor, including the right to enforce the instrument.
State district courts are vested with exclusive original jurisdiction of all actions for the foreclosure of real estate mortgages in this state.
Allied Mutual Insurance Co. v. Dir. of N.D.D.O.T.
, 1999 ND 2,
589 N.W.2d 201
Actual notice of an occurrence is insufficient to satisfy the written notice of claim requirement of N.D.C.C. 32-12.2-04(1) (1995), for claims against the state or state employees.
Daley v. American States Preferred Ins. Co.
, 1998 ND 225,
587 N.W.2d 159
Under a choice of laws analysis, the "significant contacts" test, a court determines all of the relevant contacts which might logically influence the decision of which law to apply, and then applies five choice-influencing factors to determine which
state has the more significant interest with the issues raised.
North Dakota law applies under the "significant contacts" test where both insureds are residents of North Dakota, the respective insurance contracts were negotiated and issued in North Dakota, all of the insured's medical expenses were paid in North
Dakota, and only the location of the single vehicle car accident was in Minnesota.
State v. Spath
, 1998 ND 133,
581 N.W.2d 123
A trial court does not abuse its discretion when it refuses to
order a witness to provide a copy of her medical records, when
there has been no initial showing of materiality, and no request
for in camera review.
Failure to give an unrequested cautionary instruction not to
consider co-defendant's guilty plea is not obvious error when
other appropriate instructions were given, the allegedly
prejudicial comments were not emphasized, and there was
substantial additional evidence of defendant's guilt.
Appellate review of a criminal sentence is generally confined to
whether the trial court acted within the sentencing limits
prescribed by statute, or substantially relied upon an
impermissible factor.
Gibson v. State
, 1998 ND 89,
578 N.W.2d 128
A court order denying a request for transcripts is interlocutory
and nonappealable.
City of Fargo v. Rockwell
, 1997 ND 217,
575 N.W.2d 224
DUI conviction summarily affirmed under NDRAppP 35.1(a) (3) &
(4).
State v. Feigert
, 1997 ND 216,
575 N.W.2d 224
Conviction of issuing check without account summarily affirmed
under N.D.R.App.P. 35.1.
City of Fargo v. Sivertson
, 1997 ND 204,
571 N.W.2d 137
A police officer's approach to the defendant's vehicle stopped in
driving lane behind accident scene and knock on driver's window
to determine whether the driver was okay and why the driver was
not proceeding in the left lane with other traffic constituted a
permissible caretaker encounter and not a Fourth Amendment stop.
City of Fargo v. Novotny
, 1997 ND 73,
562 N.W.2d 95
The trial court's jury instructions concerning the actual
physical control statute were a correct statement of the law
under the facts of this case. The defendant's position in the
driver's seat made him capable of operating the vehicle, and thus
the law did not require the district court to instruct the jury
that an intoxicated person's presence in a motor vehicle as a
passenger does not constitute the offense.
State v. Garcia
, 1997 ND 60,
561 N.W.2d 599
The defendant's right to a public trial was not violated when the
trial court temporarily terminated expanded media coverage and
partially closed the trial during the testimony of a 15 year-old
accomplice who was reluctant to testify.
Sufficient evidence corroborated the accomplice's testimony.
The defendant was not denied his due process right to a fair
trial when the State charged him with a street-gang crime and
voluntarily dismissed the charge after its case-in-chief.
The juvenile defendant's sentence to life imprisonment without
parole is not cruel and unusual punishment within the meaning of
the Eighth Amendment.
The Eighth and Fourteenth Amendments placed no constitutional
duty upon the trial court to affirmatively seek out mitigating
circumstances before sentencing the defendant to life
imprisonment without parole when the defendant himself did not
offer any mitigating circumstances.
State v. Olson
,
552 N.W.2d 362 (N.D. 1996)
Although the defendant did not directly communicate
threats to the victim, there was sufficient circumstantial
evidence to support a guilty verdict for terrorizing, because
the jury could have reasonably decided the defendant
recklessly disregarded the risk his threats would be
communicated to the victim
State v. McDonell
,
550 N.W.2d 62 (N.D. 1996)
State v. Holecek
,
545 N.W.2d 800 (N.D. 1996)
City of Fargo v. Brennan
,
543 N.W.2d 240 (N.D. 1996)
State v. Waters
,
542 N.W.2d 742 (N.D. 1996)
City of Fargo v. Mears
,
544 N.W.2d 176 (N.D. 1995)
State v. Kerbaugh
,
544 N.W.2d 176 (N.D. 1995)