Carol Ronning Kapsner, Justice

Lucas v. Porter , 2008 ND 160, 755 N.W.2d 88
The rule against splitting a cause of action is part of a rule of abatement and part of a rule of res judicata.
A pending action may be pleaded as a bar to a subsequent action where a final judgment in the prior action, pleaded in abatement, would support a plea of res judicata on the issues involved in the second action.
Claim preclusion prevents the relitigation of claims that were raised or could have been raised in prior actions between the same parties or their privies and means a valid existing final judgment from a court of competent jurisdiction is conclusive with regard to claims raised, or those that could have been raised and determined, as to the parties and their privies in all other actions.
Claim preclusion applies even if subsequent claims are based upon a different legal theory.
For proposes of claim preclusion, privity exists if a person is so identified in interest with another that the person represents the same legal right.
Gustafson v. Poitra , 2008 ND 159, 755 N.W.2d 479
Generally, a statute of limitations is an affirmative defense that is waived if not pleaded.
Failure to file a brief by the adverse party may be deemed an admission that, in the opinion of party or counsel, the motion is meritorious. Even if an answer brief is not filed, the moving party must still demonstrate to the court that it is entitled to the relief requested.
In responding to a summary judgment motion, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, must be entered against the adverse party.
Under N.D.R.Civ.P. 59, the district court in its sound discretion may vacate a decision and grant a new trial if there is newly discovered material evidence that the party could not have discovered and produced at the trial with reasonable diligence.
City of Grand Forks v. Riemers , 2008 ND 153, 755 N.W.2d 99
The right to appeal in this state is statutory, and there is no constitutional right to an appeal.
When a defendant has appealed a municipal court's decision on a noncriminal municipal traffic offense to district court for trial anew, the district court's decision may not be appealed to the Supreme Court.
Estate of Conley , 2008 ND 148, 753 N.W.2d 384
North Dakota recognizes the common law presumption that a lost or missing will is presumed to be revoked by the testator.
The party seeking to probate the lost or missing will must demonstrate, by a preponderance of the evidence, that the testator did not destroy or revoke the missing will animo revocandi.
Klose v. State , 2008 ND 143, 752 N.W.2d 192
Summary dismissal of an application for post-conviction relief is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.
Raising an issue in a second post-conviction application that could have been raised in a prior post-conviction application or other proceeding is a misuse of process.
To show ineffective assistance of post-conviction counsel, a post-conviction applicant must show post-conviction counsel's performance fell below an objective standard of reasonableness and the deficient performance prejudiced him.
A stipulation to certain factual elements of an offense is not a guilty plea.
Lagerquist v. Stergo , 752 N.W.2d 168 (N.D. 2008)
Agency is generally a question of fact.
Agency is never presumed, and if an agency relationship is denied, the party alleging agency must establish it by clear and convincing evidence.
On appeal, a finding of agency is reviewed under the clearly erroneous standard.
An agency relationship is created when one person, called the principal, authorizes another, called the agent, to act for the principal in dealing with third persons. Agency is either actual or ostensible.
Agency cannot be proved by showing the declarations of the alleged agent.
Laib v. Laib , 2008 ND 129, 751 N.W.2d 228
When the district court in a divorce proceeding has made specific findings that the domestic violence presumption against an award of custody has been triggered and the perpetrator has failed to rebut the presumption, the court may not later change custody to the perpetrator unless the court finds by clear and convincing evidence that the presumption has been rebutted.
A motion for relief from a judgment is not a substitute for an appeal.
Interest of K.L. and M.S. , 2008 ND 131, 751 N.W.2d 677
A juvenile court's decision to terminate parental rights is a question of fact that will not be overturned unless the decision is clearly erroneous.
The State cannot rely on past deprivation alone, but must provide prognostic evidence, Ademonstrating the deprivation will continue.
A claim for ineffective assistance of counsel in termination proceedings is recognized, but the necessary evidence of the claim must appear on the face of the record and a case will not be remanded for the purpose of developing a record to support the claim.
Matter of E.W.F. , 2008 ND 130, 751 N.W.2d 686
Civil commitments of sexually dangerous individuals are reviewed under a modified clearly erroneous standard and will be affirmed unless the district court's order is induced by an erroneous view of the law, or we are firmly convinced the order is not supported by clear and convincing evidence.
In addition to the three requirements contained in the plain language of the statute governing sexually dangerous individual commitments, substantive due process rights require the individual facing commitment must be shown to have serious difficulty controlling his behavior.
In a civil proceeding, a party's failure to offer evidence refuting or otherwise explaining the opposing party's witness testimony warrants the inference that the opposing party's witness's statements were true and correct.
Red River Wings, Inc. v. Hoot, Inc. , 2008 ND 117, 751 N.W.2d 206
Unambiguous contracts are particularly amenable to summary judgment.
Limited partners who participate in the business of the partnership or act in concert with the general partner are subject to the fiduciary duties of good faith, fair dealing, loyalty, and care applicable to partners in a general partnership.
Whether a person has breached a fiduciary duty is a question of fact.
Majority limited partners who control or act in concert with the general partner can be held personally liable to minority limited partners for damages for breach of fiduciary duties.
In the breach of a partnership contract by wrongful dissolution, the damages recoverable include the value of the profits the plaintiff otherwise would have received had the partnership not been wrongfully dissolved.
District courts are considered experts in determining what is a reasonable amount of attorney fees, and an award will not be reversed absent a clear abuse of discretion.
Whether interference with a contractual relationship is justified is a question of fact.
The doctrines of frustration of purpose and impossibility do not apply if the frustration or impossibility is caused by a party to the contract.
When an agreement does not specify an interest rate, the rate for prejudgment interest is 6 percent from the time the right to recover vested.
Wheeler v. State , 2008 ND 109, 750 N.W.2d 446
An applicant for post-conviction relief has the burden of establishing grounds for relief.
A district court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
In a post-conviction proceeding, the district court, for good cause, may grant leave to either party to use the discovery procedures available in criminal or civil proceedings. Discovery procedures may be used only to the extent and in the manner the court has ordered or to which the parties have agreed.
Guardianship/Conservatorship of V.J.V.N. , 2008 ND 106, 750 N.W.2d 462
The district court has discretionary authority regarding the management of a protected person's estate, and the court's decisions on those matters will be reversed on appeal only for an abuse of discretion.
When the Supreme Court interprets statutes, its duty is to ascertain the legislative intent, which initially must be sought from the statutory language itself, giving it its plain, ordinary, and commonly understood meaning.
Voisine v. State , 2008 ND 91, 748 N.W.2d 429
Conditions of probation are strictly construed in favor of the offender; however, the conditions are construed as mandatory because of the duty to regulate a probationer's activities to help in his or her rehabilitation and at the same time to guard against continued criminal behavior.
A probation condition is not violated during incarceration if the condition unambiguously is not effective until release.
State v. $33,000 U.S. Currency , 2008 ND 96, 748 N.W.2d 420
A district court's denial of a motion for relief from a default judgment will be reversed if the court abused its discretion.
A district court should be more lenient when entertaining motions to vacate default judgments as distinguished from judgments entered after a trial on the merits.
Whether an appearance has been made for purposes of N.D.R.Civ. P. 55(a) is a question of law.
An appearance is any response sufficient to give the plaintiff or his or her attorney notice of an intent to contest the claim.
State v. Gay , 2008 ND 84, 748 N.W.2d 408
Under the Fourth Amendment, a seizure occurs whenever an officer stops an individual and restrains his freedom, and that seizure must be reasonable.
A search, under the Fourth Amendment, occurs when the government intrudes upon an individual's reasonable expectation of privacy.
A pat-down search is not simply a routine preliminary to a more extensive search.
The exclusionary rule prohibits the admission of physical and testimonial evidence gathered illegally.
Interest of T.E. , 2008 ND 86, 748 N.W.2d 677
A district court must to make all four factual findings in an involuntary medication order, whether the involuntary medication order is included as part of the larger commitment order or when a medication order is issued separately.
Lynnes v. Lynnes , 2008 ND 71, 747 N.W.2d 93
The district court's valuation of property is a finding of fact which will be reversed on appeal only if it is clearly erroneous. When the district court's valuation is within the range of evidence provided by the parties, the district court's valuation will not be set aside, unless this Court has a definite and firm conviction a mistake has been made.
A relatively insignificant error in valuation of a marital asset will not, standing alone, constitute sufficient grounds for reversal of the judgment.
If substantial amount of debts are excluded from the marital estate, it is not clear that the district court would have reached the same result in allocating the assets and debts had it correctly included the debts as part of the marital estate before allocating the debts between the parties.
Hitz v. Hitz , 2008 ND 58, 746 N.W.2d 732
A trial court must start with a presumption that all property held by either party, whether held jointly or individually, is to be considered marital property. The trial court must then determine the total value of the marital estate in order to make an equitable division of property.
After a fair evaluation of the property is made, the entire marital estate must then be equitably divided between the parties under the Ruff-Fischer guidelines.
A trial court, having the opportunity to observe demeanor and credibility, is in a far better position than an appellate court in ascertaining the true facts regarding property value, and a marital property valuation within the range of the evidence presented to the district court is not clearly erroneous.
Buchholtz v. Director, N.D. Dept. of Transportation , 2008 ND 53, 746 N.W.2d 181
Fair administration of an Intoxilyzer test may be established by proof that the method approved by the State Toxicologist for conducting the test has been scrupulously followed.
"Observing" a DUI arrestee is not the only manner of "ascertaining" that the arrestee had nothing to eat, drink, or smoke within the twenty minutes prior to the collection of the breath sample as required by the approved method.
State v. Schmalz , 2008 ND 27, 744 N.W.2d 734
Probable cause exists when the facts and circumstances relied upon by the judge who issues the warrant would lead a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.
"Bare-bones" information is not sufficient to satisfy the probable cause requirement for a warrant.
The determination of whether probable cause exists to issue a search warrant is a question of law.
Simply because a warrant application contains some information that is not relevant, or is, in and of itself, insufficient to create probable cause, does not necessarily mean probable cause did not exist to validly issue the warrant.
While the our state constitution may, in certain instances, provide greater individual rights than those afforded under the federal constitution, like the Fourth Amendment, Article I, section 8 of the North Dakota Constitution is not implicated unless a reasonable expectation of privacy is invaded.
Interest of P.F. , 2008 ND 37, 744 N.W.2d 724
The court must decide whether an individual who is committed because he is sexually dangerous may be discharged.
The equal protection clauses of the state and federal constitutions do not prohibit legislative classifications or require identical treatment of different groups of people.
State v. Lium , 2008 ND 33, 744 N.W.2d 774
A plea agreement for a specific sentence or sentencing range which is binding on a district court may be accepted, rejected, or deferred until the court has reviewed a presentence report.
After a guilty plea has been accepted but before sentencing, a defendant may withdraw the plea if necessary to correct a manifest injustice, or if allowed in the court's discretion for any fair and just reason unless the prosecution has been prejudiced by reliance on the plea.
A district court misapplies the law if a motion to withdraw a guilty plea is made before sentencing and the court does not decide whether there was a fair and just reason for withdrawal of the plea.
Matter of Hehn , 2008 ND 36, 745 N.W.2d 631
In a civil commitment of a sexually dangerous individual, the fact that actuarial test scores do not give rise to scores showing a high re-offending risk does not preclude the fact-finder from coming to an alternative conclusion.
The importance of independent judicial decision-making means the court, rather than the test scores or the psychologists who create them, is the ultimate decision-maker as to whether the State has met its burden of clear and convincing evidence to sustain a civil commitment for a sexually dangerous individual.
State v. Skarsgard , 2008 ND 31, 745 N.W.2d 358
Under N.D.R.Crim.P. 12(b), a defendant is required to make certain motions before trial, and failure to do so may waive defenses under the rule.
The Supreme Court may grant relief from a waiver if the movant establishes just cause.
Lies v. N.D. Dept. of Transportation , 2008 ND 30, 744 N.W.2d 783
Individuals arrested for DUI must be afforded a reasonable opportunity to consult with counsel before deciding whether to submit to a chemical test.
The failure to allow a DUI arrestee a reasonable opportunity to consult with a lawyer after the arrestee has made such a request prevents the revocation of his driver's license for refusal to take a chemical test.
There are no bright-line rules for determining whether a "reasonable opportunity" to consult with an attorney has been afforded; rather, the determination of whether a reasonable opportunity has been provided turns on an objective review of the totality of the circumstances.
State v. Wegley , 2008 ND 4, 744 N.W.2d 284
Even if a defendant objects to hearsay testimony about a child's out-of-court statement at a pre-trial hearing, the defendant's failure to object at trial limits review to determining whether the admission of that testimony into evidence constitutes obvious error affecting substantial rights.
To establish obvious error, a defendant must show error that is plain and affects substantial rights, and to affect substantial rights a plain error must have been prejudicial, or have affected the outcome of the proceeding.
Nonverbal conduct is a statement under the hearsay rules if the nonverbal conduct was intended as an assertion.
A declarant's out-of-court statement is not hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement, and the statement is consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.
Koble v. Koble , 2008 ND 11, 743 N.W.2d 797
A district court's decisions on child custody are treated as findings of fact and will not be set aside on appeal unless clearly erroneous.
In making an initial custody determination, the district court must apply the factors listed in N.D.C.C. 14-09-06.2(1) and award custody to the person who will better promote the best interests and welfare of the child.
State v. Hurt , 2007 ND 192, 743 N.W.2d 102
In a review of a district court's decision to grant or deny a motion to suppress, the district court's findings of fact are given deference, and conflicts in testimony are resolved in favor of affirmance.
One exception to the warrant requirement is voluntary consent by the individual whose property is searched, or by a third party who possesses common authority over the premises.
The Fourth Amendment does not require law enforcement to provide co-occupants opportunity to assert their Fourth Amendment rights at the door; rather, the protections provide that a physically present co-occupant, who expressly refuses to permit the search despite the consent of his fellow occupant, renders the warrantless search unreasonable as to him.
The co-occupant who is not present at the door and does not refuse the search at the time his fellow occupant provides consent "loses out" on his opportunity to exclude evidence gathered in a common-area, co-occupant consent search.
Kienzle v. Yantzer , 2007 ND 167, 740 N.W.2d 393
When a stipulation is incorporated into a judgment, the judgment is interpreted and enforced, not the underlying contract.
A district court's interpretation of its own judgment is entitled to deference when the language of the judgment is ambiguous.
A district court's decision whether to allow a custodial parent to relocate out of state with the child is a finding of fact, and will not be overturned on appeal unless clearly erroneous.
State v. Barendt , 2007 ND 164, 740 N.W.2d 87
A fact-finder decides the credibility of witnesses, and is not required to believe a witness's testimony, even when no direct evidence is offered to the contrary.
State v. Tibor , 2007 ND 146, 738 N.W.2d 492
A court does not abuse its discretion in allowing expert testimony about child sexual abuse accommodation syndrome if it finds the testimony may assist the jury in understanding the evidence or determine a fact in issue.
Mere repetition of a child's out-of-court statements does not make them unduly prejudicial.
A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact-finder could find the defendant guilty beyond a reasonable doubt.
State v. Demars , 2007 ND 145, 738 N.W.2d 486
Denial of a motion to suppress evidence will not be reversed if there is sufficient competent evidence capable of supporting the court's findings, and if its decision is not contrary to the manifest weight of the evidence.
McGhee v. Mergenthal , 2007 ND 120, 735 N.W.2d 867
An implied trust is created by operation of law and is of two types: constructive trusts and resulting trusts.
An implied trust must be established by clear and convincing evidence.
A resulting trust stems from acts or expressions of the parties indicating an intent that a trust relation result from their transaction.
The two essential elements of a constructive trust are unjust enrichment and a confidential relationship.
State v. Holbach , 2007 ND 114, 735 N.W.2d 862
A specific on-the-record colloquy is not necessary to establish the validity of a defendant's waiver of the right to counsel if the record establishes the defendant voluntarily, knowingly, and intelligently waived the right to counsel.
Interest of B.B. , 2007 ND 115, 735 N.W.2d 855
To satisfy the business records exception to the hearsay rule, each participant in the creation of the record must be acting in the course of regularly conducted business.
The Sixth Amendment right to confront and cross-examine witnesses does not apply to civil proceedings.
A party in a deprivation proceeding in juvenile court is entitled to the opportunity to cross-examine adverse witnesses.
A juvenile court's finding of deprivation will not be set aside on appeal unless clearly erroneous.
Interest of J.C. , 2007 ND 111, 736 N.W.2d 451
In a proceeding to terminate parental rights, a juvenile court's decision to grant or deny a continuance is addressed to the court's discretion.
A juvenile court may not declare a parent in default and terminate parental rights without some evidentiary basis in the record to support the termination.
Rahn v. State , 2007 ND 121, 736 N.W.2d 488
An order denying a motion to correct an illegal sentence under N.D.R.Crim.P. 35(a) is appealable, but an order denying a motion for reduction of sentence under N.D.R.Crim.P. 35(b) is not appealable.
Post-conviction proceedings under N.D.C.C. ch. 29-32.1 may not be used to challenge the Department of Corrections' failure to provide medical treatment to an inmate.
State v. Fehl-Haber , 2007 ND 99, 734 N.W.2d 770
A district court has broad discretion in evidentiary matters, and its decision to admit or exclude evidence will not be overturned unless there has been an abuse of discretion.
In a criminal trial, all communications with the jurors after the jurors have retired for deliberations must be made in open court and in the presence of the defendant.
A criminal defendant may waive the right to have all communications with the jurors made after the case has been submitted to them by failing to object to the trial court's procedure in responding to the jury's request.
To prevail on a motion for a new trial on the ground of newly discovered evidence, the defendant must show: (1) the evidence was discovered after trial, (2) the failure to learn about the evidence at the time of trial was not the result of the defendant's lack of diligence, (3) the newly discovered evidence is material to the issues at trial, and (4) the weight and quality of the newly discovered evidence would likely result in an acquittal.
Where a sexual assault victim's credibility is not in issue, evidence that the victim made a similar accusation against another individual is immaterial and not likely to result in an acquittal.
State v. Flatt , 2007 ND 98, 733 N.W.2d 608
Elements to an offense cannot be retroactively applied unless the Legislature expressly declares its intention to do so.
A charging document must sufficiently describe an offense based on the law in effect at the time the conduct occurred.
A defendant is not entitled to relief based on defective charging documents if the documents sufficiently allege an offense, based on the law in effect at the time the criminal conduct occurred, and the district court has jurisdiction over the matter.
State v. Noack , 2007 ND 82, 732 N.W.2d 389
A self-represented litigant is subject to the rules of appellate procedure and must reasonably comply with them to obtain judicial review.
It is essential that litigants provide a statement of the issues to be reviewed, a statement of the facts, and an argument section to obtain judicial review.
Cline v. Cline , 2007 ND 85, 732 N.W.2d 385
A stipulation which results in a child support obligation less than that required by the child support guidelines violates public policy and will not be enforced.
When an obligor has been awarded extended visitation, as defined under the guidelines, adjustment to child support to reflect that visitation must be made in accordance with the guidelines.
When an obligor has a reduced ability to pay child support because of travel expenses incurred for child visitation, any adjustment must be made to the obligor's net income in computing child support.
State v. Albaugh , 2007 ND 86, 732 N.W.2d 712
An expectation of privacy in commercial property where the public is apparently welcome is different from, and less than, a similar expectation in an individual's home.
Plain view is a recognized exception to the search warrant requirement, which allows law enforcement to seize a clearly incriminating object without a warrant if the officers are lawfully in a position from which they view an object and the object's incriminating character is immediately apparent.
A search incident to an arrest is a recognized exception to the search warrant requirement, which allows an arresting officer to lawfully search the area within the arrestee's immediate control.
Consent is a recognized exception to the search warrant requirement, so long as the consent is given freely and voluntarily, without any threats or promises having been made.
WFND, LLC v. Fargo Marc, LLC , 2007 ND 67, 730 N.W.2d 841
A motion to amend a complaint under N.D.R.Civ.P. 15(a) and a motion for voluntary dismissal under N.D.R.Civ.P. 41(a)(2) lie within the sound discretion of the district court and will not be reversed on appeal absent an abuse of discretion.
A breach of contract is the nonperformance of a contractual duty when it is due, and the burden of proving the elements of a breach of contract is on the party asserting the breach.
Mixing principles of tort and contract law and using tort terminology to describe a breach of contract is improper.
Fraud applies when there is a contract between the parties and deceit applies when there is no contract between the parties.
An intent to defraud usually is not susceptible of direct proof, and can be established by circumstantial evidence.
The award of damages will be sustained on appeal if it is within the range of the evidence presented to the trier of fact.
A district court is not required to accept the undisputed testimony of an expert witness.
A written contract may be modified by an executed oral agreement.
The parol evidence rule does not preclude proof of the existence of a separate oral stipulation or agreement concerning any matter on which the written contract is silent, and which is not inconsistent with its terms.
Successful litigants are not allowed to recover attorney fees unless authorized by statute or by contract.
When opposing parties each prevail on some of their claims, there is no single prevailing party for whom disbursements may be taxed.
Disbursements listed in N.D.C.C. 28-26-06 may be awarded as discretionary costs under N.D.C.C. 28-26-10.
Holbach v. Dixon , 2007 ND 60, 730 N.W.2d 613
A petition for a disorderly conduct restraining order must allege specific facts or threats that adversely affect the safety, security, or privacy of another person.
To comport with due process requirements in a disorderly conduct restraining order proceeding, a court can limit the petitioner's argument to the dates alleged and the facts contained in the petition.
Gratech Co., Ltd. v. Wold Engineering, P.C. , 2007 ND 46, 729 N.W.2d 326
An arbitration award is vacated only if it is completely irrational, in that the decision is either mistaken on its face or so mistaken as to result in real injustice or constructive fraud. An arbitrator's mistake as to fact or law is not a sufficient ground for overturning an arbitration award.
A successful litigant is not entitled to attorney's fees unless they are expressly authorized by statute or by agreement of the parties.
When no evidence is introduced and when the district court makes no specific findings of fact to support its determination on attorney's fees, it is impossible for the Supreme Court on appeal to appropriately review the decision of the district court.
Jelsing v. Peterson , 2007 ND 41, 729 N.W.2d 157
An initial award of custody must be made to one parent before a court may decide whether to allow a custodial parent to relocate with a child to another state.
State v. Bachmeier , 2007 ND 42, 729 N.W.2d 141
Observed traffic violations provide law enforcement officers with the basis for a stop.
The exclusionary rule is only designed to safeguard an individual's rights through its deterrent effect, and it is not a personal constitutional right of the party aggrieved.
North Dakota law authorizes law enforcement personnel operating a class A emergency vehicle to exceed the posted speed limit to pursue a suspected violator, so long as it can be done without danger to life or property.
State v. Altru Health Systems , 2007 ND 38, 729 N.W.2d 113
The district court's inquiry in proceedings for enforcing an administrative subpoena is limited to whether: (1) the subpoena is within the statutory authority of the agency; (2) the information sought is reasonably relevant to the inquiry of the administrative proceeding; (3) the subpoena is reasonably specific; and (4) the subpoena is not unduly broad or burdensome.
A court's decision to issue a protective order imposing restrictions on an administrative subpoena is reviewed for an abuse of discretion.

Holden v. Holden , 2007 ND 29, 728 N.W.2d 312
North Dakota law does not mandate a set formula or method to determine how marital property is to be divided after a divorce; rather, the property division is based on the particular circumstances of each case.
Property need not be liquidated for a distribution to be equitable.
State v. Loughead , 2007 ND 16, 726 N.W.2d 859
A person does not have a constitutional right to confront a mere informer who does not testify against him.
There is a presumption of regularity in prosecutorial conduct, and in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.
In the ordinary case, so long as the prosecutor has probable cause to believe the accused committed an offense, the decision whether to prosecute and what charges to file generally rests within the prosecutor's discretion.
The government may not base its decision to prosecute on a constitutionally unjustifiable standard such as race, religion, or other arbitrary classification.
The government, upon the defendant's request, must disclose statements of the defendant, the defendant's previous record, documents and objects, any reports of examinations and tests, and information concerning expert witnesses within the government's possession, custody, or control.
State v. Bates , 2007 ND 15, 726 N.W.2d 595
After a guilty plea is accepted, but before sentencing, the defendant may withdraw a guilty plea if necessary to correct a manifest injustice, or, if allowed in the court's discretion, for any "fair and just" reason unless the prosecution has been prejudiced by reliance on the plea.
A factual basis is a statement of facts to assure the defendant is guilty of the crime charged.
A court may determine a sufficient factual basis in one of three ways: (1) the court could inquire directly of the defendant concerning the performance of the acts which constituted the crime; (2) the court could allow the defendant to describe to the court in his own words what had occurred and then the court could question the defendant; and (3) the court could have the prosecutor make an offer of proof concerning the factual basis for the charge.
When a claim for ineffective assistance of counsel is argued on direct appeal, we review the record to decide if the assistance of counsel is plainly defective. Unless the record affirmatively shows ineffectiveness of constitutional dimensions, the complaining party must show some evidence in the record to support the claim.
Leftbear v. State , 2007 ND 14, 727 N.W.2d 252
The time limit for filing a notice of appeal is jurisdictional.
The time limit for filing a notice of appeal may be extended only upon a showing of excusable neglect.
Excusable neglect is a fluid concept, encompassing both simple, faultless omissions to act and, more commonly, omissions caused by carelessness.
Ignorance of the rules, or mistakes construing the rules, are insufficient to establish excusable neglect.
State v. Zahn , 2007 ND 2, 725 N.W.2d 894
A party charged with violating a protection order cannot challenge the validity of the protection order without first presenting the argument to the court issuing the order.
A court order must be obeyed until stayed, modified, or reversed by orderly review.
To convict a defendant of violating a protection order, the State need only prove it served a protection order on the defendant and the defendant's conduct violated the order.
Lucier v. Lucier , 2007 ND 3, 725 N.W.2d 899
A spousal support obligation may be modified if the district court finds there is a material change in circumstances after examining the reasons for the changes in income and the extent to which the changes were contemplated.
A contemplated change in circumstances is not a change that justifies modifying spousal support.
When modifying a spousal support award, the district court must adequately explain its rationale in determining the new support amount.
Griggs v. Fisher , 2006 ND 255, 725 N.W.2d 201
Before addressing the issue of sufficiency of the evidence to support a jury verdict, a losing party must move for judgment as a matter of law under N.D.R.Civ.P. 50 or for a new trial under N.D.R.Civ.P. 59.
Allard v. Johnson , 2006 ND 243, 724 N.W.2d 331
Whether a presumption applies is a question of law, which is fully reviewable on appeal.
A durable power of attorney agreement creates a confidential relationship and fiduciary duties owed to the beneficiary by the attorney-in-fact.
Under a durable power of attorney agreement, the attorney-in-fact must act with the highest good faith toward the beneficiary and may not obtain any advantage over the beneficiary.
All transactions between an attorney-in-fact and a beneficiary by which the attorney-in-fact obtains any advantage is presumed to be entered into without sufficient consideration and under undue influence.
Sambursky v. State , 2006 ND 223, 723 N.W.2d 524
A district court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
If the petitioner raises an issue of material fact in resisting summary dismissal of an application for post-conviction relief, the petitioner is entitled to an evidentiary hearing on the matter.
In a post-conviction relief proceeding alleging the ineffective assistance of counsel with respect to a guilty plea, counsel is ineffective if a claimant can show that counsel's performance fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's errors, the petitioner would not have pleaded guilty and would have insisted on going to trial.
Riemers v. City of Grand Forks , 2006 ND 224, 723 N.W.2d 518
A party opposing summary judgment may not merely rely upon the pleadings or unsupported, conclusory allegations.
A party waives an issue by not providing supporting arguments, reasoning, or citations to relevant legal authority.
An Attorney General's opinion is "highly persuasive" if it is consistent with the district court's independent analysis of the issues presented.
Under the open records law, a public entity need not disclose a record that is not in its possession or custody at the time of the request.
The "criminal intelligence and investigative information exception," which exempts active criminal investigation material from disclosure under the open records law, is temporary in nature and terminates upon the completion of the criminal prosecution.
State v. Just , 2006 ND 225, 723 N.W.2d 541
An information or complaint must contain a plain, concise, and definite written statement of the essential facts and elements of the offense.
The omission of statutory language from an information or complaint may be harmless if the defendant was not substantially prejudiced and the document is sufficiently specific to enable the defendant to prepare a defense.
Hasper v. Center Mutual Ins. Co. , 2006 ND 220, 723 N.W.2d 409
An insurer which seeks to deny underinsured motorist coverage based upon the insured's failure to notify the insurer of a proposed settlement with the tortfeasor must demonstrate that it suffered actual prejudice resulting from the lack of notice.
The determination whether an insurer has been prejudiced by an unauthorized settlement is a question of fact that is generally inappropriate for summary judgment.
In determining whether an insurer has suffered actual prejudice from an unauthorized settlement, relevant factors include the amount of the tortfeasor's assets, the likelihood of recovery via subrogation, the extent of the insured's damages, and the expenses and risks of litigating the insured's cause of action.
Hild v. Johnson , 2006 ND 217, 723 N.W.2d 389
An undivided mineral interest conveyed or reserved in a deed may be expressed as a percentage, as a fraction, or as a specified number of mineral acres.
A grantee of a specified number of mineral acres in a described tract of land acquires that number of acres, and does not gain or lose if the tract contains more or less acreage than contemplated by the parties.
A grantee of an undivided mineral interest expressed as a percentage or fraction acquires that quantum in the entire described tract of land, and may gain or lose if the tract contains more or less acreage than contemplated by the parties.
When there is a discrepancy in a deed between the specific description of the property conveyed and an expression of the quantity conveyed, the specific description is controlling.
Quantity is the least certain of all elements of description in a deed, and all other elements of description must be ambiguous and uncertain before a recital of quantity will be considered.
Interest of B.L.S. , 2006 ND 218, 723 N.W.2d 395
After a request to treat with medication has been made, an independent physician or psychiatrist must certify that the proposed treatment is clinically appropriate and necessary, that the patient was offered the treatment and refused it, that the prescribed medication is the least restrictive form necessary to meet the patient's needs, and that the benefits of treatment outweigh the known risks.
Mental health respondents are entitled to adequate notice and the opportunity to prepare to address the involuntary treatment with medication.
A district court cannot order medications which have not been noticed in the request to treat with medication and have not been certified as clinically appropriate and necessary by a second physician or psychiatrist.
The involuntary treatment with medication is not limited to psychotropic medications used to treat mental illness.
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.
State v. Schmidkunz , 2006 ND 192, 721 N.W.2d 387
In controlling the scope of closing argument, the district court is vested with discretion, and absent a clear showing of an abuse of discretion, we will not reverse on grounds the prosecutor exceeded the scope of permissible closing argument. Unless the error is fundamental, a defendant must demonstrate a prosecutor's comments during closing argument were improper and prejudicial.
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
The district court has broad discretion over the conduct of a trial, including scheduling the time for jury deliberations. The court must exercise its discretion in a manner that best comports with substantial justice.
State v. Iverson , 2006 ND 193, 721 N.W.2d 396
A statute authorizing credit for time served in custody cannot be retroactively applied after a person has been finally convicted.
Interest of B.L.S. , 2006 ND 188, 721 N.W.2d 50
A district court cannot allow a respondent in a mental health proceeding to waive the right to counsel without first establishing, on the record, that the respondent is competent to waive counsel and that the waiver is knowingly, intelligently, and voluntarily made.
To establish a valid waiver of counsel in a mental health proceeding, the district court must engage in a colloquy on the record that mirrors the required colloquy for the waiver of counsel in a criminal proceeding.
Gabel v. N.D. Department of Transportation , 2006 ND 178, 720 N.W.2d 433
A report by a citizen informant that an individual is speeding up and slowing down does not give rise to a reasonable and articulable suspicion of criminal activity.
State v. Campbell , 2006 ND 168, 719 N.W.2d 374
Under Crawford v. Washington, 541 U.S. 36 (2004), the admission of out-of-court testimonial statements in criminal cases is precluded, unless the witness is unavailable to testify and the accused has had an opportunity to cross-examine the declarant.
A defendant can waive a potential Confrontation Clause violation by failing to exercise a statutorily defined opportunity to subpoena the author of the state crime laboratory report.
State v. Salveson , 2006 ND 169, 719 N.W.2d 747
A trial court is allowed the widest range of discretion in criminal sentencing.
Multiple class A misdemeanor offenses may be deemed by the sentencing court to involve substantially different criminal objectives if they do not fall under one of the following three categories: (1) one offense is an included offense of the other; (2) one offense consists of a conspiracy, attempt, solicitation, or other form of preparation to commit, or facilitation of, the other; or (3) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.
The crimes of aggravated reckless driving and driving while under the influence constitute two crimes with substantially different criminal objectives.
The Ramsey Financial Corp. v. Haugland , 2006 ND 167, 719 N.W.2d 346
Voluntary acquiescence in a judgment waives the right to appeal.
Absent fraud, the procedure for asserting dissenting shareholders' rights under N.D.C.C. 10-19.1-87 and 10-19.1-88 is an exclusive remedy.
Frisk v. Frisk , 2006 ND 165, 719 N.W.2d 332
A domestic violence protection order may be extended upon request made prior to the order's expiration.
After a case has been remanded, the district court must cure any defects, but may do so in any manner consistent with the appellate court's opinion and conformable to law and justice.
Gietzen v. Gabel , 2006 ND 153, 718 N.W.2d 552
When there is credible evidence of domestic violence, it is the predominate factor in a child custody decision.
Specific findings and conclusions are required when a district court addresses whether evidence of domestic violence triggers the presumption against awarding custody of a child to a perpetrator of domestic violence.
When reciprocal domestic violence is claimed, a district court must make specific findings on the degree of violent behavior by each parent.
Interest of K.H. , 2006 ND 156, 718 N.W.2d 575
A juvenile's right to counsel can be waived even if the minor is of a young age, provided the juvenile is represented by the child's parent, guardian, or custodian.
Deference is given to a juvenile court's credibility determinations.
Witzke v. City of Bismarck , 2006 ND 160, 718 N.W.2d 586
A prosecutor is absolutely immune from liability for prosecutorial functions such as the initiation and pursuit of a criminal prosecution, the presentation of the State's case at trial, and other conduct intimately associated with the judicial process.
There is no private cause of action for perjury.
DeMers v. DeMers , 2006 ND 142, 717 N.W.2d 545
The statutory presumption against awarding custody to the perpetrator of domestic violence applies when the district court finds there is credible evidence of domestic violence and at least one incident of domestic violence resulted in serious bodily injury or involved the use of a dangerous weapon, or there is a pattern of domestic violence within a reasonable proximity to the proceeding.
A party waives the right to appeal a divorce judgment if she unconditionally, voluntarily, and consciously accepts the benefits of the judgment.
The district court must adequately explain a substantial disparity in a property distribution.
State v. Blue , 2006 ND 134, 717 N.W.2d 558
Under Crawford v. Washington, 541 U.S. 36 (2004), the admission of out-of-court testimonial statements in criminal cases is precluded, unless the witness is unavailable to testify and the accused has had an opportunity to cross-examine the declarant.
Videotape recording of child's statement to forensic interviewer that included government involvement is a testimonial statement and if the child is available to testify, and the playing of the videotape without the opportunity to cross-examine the witness violates defendant's constitutional right to confront his accuser.
The "reliability and trustworthiness" factors are still to be used for non-testimonial statements. But when testimonial statements are at issue, the constitutional right to confrontation cannot be superseded by reliability and trustworthiness.
Ulsaker v. White , 2006 ND 133, 717 N.W.2d 567
All assets regardless of source, whether separately obtained or inherited property, are to be considered part of the marital estate.
A district court misapplies the law when it determines property individually held is not included in the marital estate.
A property division need not be equal, but a substantial disparity must be explained.
Questions of property division and spousal support ordinarily must be examined and dealt with together.
State v. Gresz , 2006 ND 135, 717 N.W.2d 583
In the absence of physical action upon another person, the failure to include a self-defense jury instruction on a charge of disorderly conduct is not obvious error.
Kenmare Education Assn. v. Kenmare Public School Dist. #28 , 2006 ND 136, 717 N.W.2d 603
A school district must negotiate in good faith with the representative organization before last-offer contracts are made.
After the North Dakota Education Fact Finding Commission has issued a recommendation and the parties are still at an impasse, a School District may issue last-offer contracts limited to the current period of negotiations.
Tarnavsky v. Tarnavsky , 2006 ND 124, 717 N.W.2d 534
A case is remanded to the district court with directions to vacate an order confirming a sheriff's sale when the appellee concedes on appeal that errors occurred in the sheriff's sale and consents to vacation of the order confirming the sale.
Gust v. State , 2006 ND 114, 714 N.W.2d 826
A defendant has the burden to show he is entitled to additional credit for time served in custody.
A defendant is not entitled to credit for time spent in custody for both a separate criminal offense and a new sentence following a parole revocation.
Carpenter v. Rohrer , 2006 ND 111, 714 N.W.2d 804
An appellant must provide a transcript sufficient to allow a meaningful and intelligent review of the alleged errors and assumes the consequences for the failure to file a complete transcript.
Special jury verdicts are upheld whenever possible and set aside only if it is shown they were perverse and clearly contrary to the evidence.
A witness's qualification to testify as an expert is left to the sound discretion of the trial court and is not reversed on appeal absent an abuse of discretion.
Lausen v. Hertz , 2006 ND 101, 714 N.W.2d 57
A court may, without an evidentiary hearing, deny a motion seeking modification of custody, unless the court finds the moving party has established a prima facie case justifying modification.
An unappealed judgment authorizing the custodial parent to remove the child from the state is res judicata.
State ex rel. Stenehjem v. FreeEats.com, Inc. , 2006 ND 84, 712 N.W.2d 828
Preemption of state law is not favored, and the framework for analyzing a preemption claim under the Supremacy Clause begins with the basic assumption that Congress did not intend to displace state law.
A state's police power encompasses the duty to protect the privacy of its citizens, including the authority to protect the peaceful enjoyment of the home and the well-being and tranquility of the community.
The statutory language of the Telephone Consumer Protection Act of 1991 clearly expresses Congress' intent that the Act was not meant to occupy the field within its subject matter.
The Telephone Consumer Protection Act does not preempt a state law which prohibits telemarketing calls using automatic telephone dialing systems or artificial or prerecorded voice messages.
Marchus v. Marchus , 2006 ND 81, 712 N.W.2d 636
A modification of child support should be made effective from the date of the motion to modify, absent good reason to set some other date. The district court may set a later effective date, but its reasons for doing so should be apparent or explained.
Nesvig v. Nesvig , 2006 ND 66, 712 N.W.2d 299
In deciding whether to compel testimony of an unretained expert, the court should consider: whether the expert is being called to testify about facts of the case or to give opinion testimony; the difference between testifying to a previously formed or expressed opinion and forming a new one; whether the witness is a unique expert; the likelihood a comparable witness will willingly testify; and the degree the witness is oppressed by having to continually testify.
The district court does not abuse its discretion by failing to sequester an expert witness from observing trial testimony where the expert's presence is essential to presentation of the party's cause and no prejudice results.
Berge v. Berge , 2006 ND 46, 710 N.W.2d 417
When a trial court does not clearly state how it calculated the amount of child support, the Supreme Court will reverse and remand for an explanation even if the record contains adequate evidence for the trial court to make a precise finding.
Nonrecurrent payments are includable in an obligor's income for determining child support.
It is improper to calculate an obligor's annual employment income based on a mid- year pay stub when the obligor's employment income is reflected on the obligor's prior year's tax return.
If an obligor's most recent annual earnings are a more reliable indicator of future circumstances, the most recent annual earnings may be used to calculate a child support obligation.
Ficklin v. Ficklin , 2006 ND 40, 710 N.W.2d 387
Before a court may enter a protection order, there must be a showing of actual or imminent domestic violence.
Past abusive behavior is a relevant factor to consider in determining whether domestic violence is actual or imminent.
Where a person might live after the issuance of a domestic violence protection order is not relevant to the issuance of a domestic violence protection order.
The use of a standardized form does not excuse a court's duty to make findings that support the issuance of the order and allow for an intelligible review of a case on appeal.
State v. Ernst , 2006 ND 41, 710 N.W.2d 678
The writ of audita querela has been abolished in North Dakota.
Opposite-sex surveillance of male inmates is constitutionally permissible because minimal intrusions on prisoner's privacy were outweighed by institutional concerns for safety and equal employment opportunity.
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.
Hilgers v. Hilgers , 2006 ND 23, 709 N.W.2d 343
An appeal may be taken from a memorandum decision if it was intended to be a final order of the court.
The certification of familiarity requirement under N.D.R.Civ.P. 63 applies when a successor judge replaces another judge who is unable to proceed with a hearing or trial that has begun.
State v. Feist , 2006 ND 21, 708 N.W.2d 870
When the nature of a plea agreement is ambiguous, a trial court should clarify the existence of a plea agreement on the record.
The court must allow the defendant to withdraw a plea of guilty whenever the defendant proves withdrawal is necessary to correct a manifest injustice.
The failure of a district court to substantially comply with the requirements of N.D.R.Crim.P. 11(c) in conjunction with ambiguity on the record as to what sort of plea negotiations existed between the parties creates a manifest injustice requiring the withdrawal of a guilty plea.
Lentz v. Spryncznatyk , 2006 ND 27, 708 N.W.2d 859
A statute is employed retroactively when it is applied to a cause of action that arose prior to the effective date of the statute.
A statute is not retroactively applied merely because prior convictions are used that occurred before the effective date of a statute, as long as the triggering offense occurred after the effective date of the statute.
Interest of A.B. , 2005 ND 216, 707 N.W.2d 75
An order granting leave to intervene in an action is not appealable.
Smith v. Hall , 2005 ND 215, 707 N.W.2d 247
The failure of the non-registering party to object to registration of a foreign child support order within the statutory time limit precludes the non-registering party from further contesting the registration on any ground that could be asserted at the time of registration.
Matthews v. State , 2005 ND 202, 706 N.W.2d 74
Conclusory allegations that counsel failed to call certain witnesses without indicating what the testimony would have been, how it might have affected the outcome of the trial, or what prejudice may have resulted from the failure to call them, do not support a claim of ineffective assistance of counsel.
Ineffective assistance of counsel claims require a defendant to show that counsel's representation was objectively unreasonable and that the defendant was prejudiced by counsel's deficient performance.
A defendant must offer evidence of how any additional witnesses would have aided the defense's claim.
Eriksmoen v. ND Dept. of Transportation , 2005 ND 206, 706 N.W.2d 610
An arrestee's right to consult privately with counsel before taking a chemical test must be balanced against society's interest in obtaining important evidence.
If a person arrested for driving under the influence is asked to submit to a chemical test and responds with a request to speak with an attorney, the failure to allow the arrested person a reasonable opportunity to contact an attorney prevents the revocation of her license for refusal to take the test. The reasonableness of the opportunity to consult with counsel is viewed objectively in light of the totality of the circumstances.
Oien v. Oien , 2005 ND 205, 706 N.W.2d 81
Under the child support guidelines, disability does not necessarily excuse a parent from the obligation to pay child support.
The presence of a disability is a consideration that the court can take into account when determining the amount of support.
Submitting a document to a judge or to court personnel other than the clerk is not filing.
Interest of P.B. , 2005 ND 201, 706 N.W.2d 78
An individual committed to a mental health facility does not enjoy the same level of freedom and rights as an uncommitted individual.
Once a decision of hospitalization is made, it is not the province of this Court to micro-manage the State Hospital.
State v. Bartelson , 2005 ND 172, 704 N.W.2d 824
An officer's subjective intent is irrelevant on the question of probable cause if a driver has committed a traffic violation.
An officer's probable cause does not disintegrate simply because another police officer had previously stopped the same vehicle for the same violation.
Farmers Union Mutual Ins. Co. v. Decker , 2005 ND 173, 704 N.W.2d 857
The evidence must show the claim is within an exception to the exclusion in order to benefit from coverage.
An insurer's obligation to defend an insured and pay the resulting attorney fees arises when the complaint alleges facts that create a possibility of coverage under the policy.
Sayler v. State , 2005 ND 166, 704 N.W.2d 559
Ineffective assistance of counsel claims require a defendant to show that counsel's representation was objectively unreasonable and that the defendant was prejudiced by counsel's deficient performance.
A defendant must offer evidence of how any additional witnesses would have aided the defense's claim.
Interest of K.G. , 2005 ND 156, 703 N.W.2d 660
A district court's finding, that no less restrictive treatment programs other than hospitalization are appropriate, will not be reversed unless it is clearly erroneous.
Bladow v. Bladow , 2005 ND 142, 701 N.W.2d 903
Issues that are not raised in pleadings may be tried by the express or implied consent of the parties.
A motion to modify child custody may be made within two years after entry of an order establishing custody when the court finds a persistent and willful denial or interference with visitation.
A party seeking modification of a custody order must establish a prima facie case justifying modification in order to receive an evidentiary hearing.
Split custody of siblings is not preferred.
A trial court has discretion in awarding attorney fees in a domestic relations case.
A trial court errs as a matter of law when it fails to follow the child support guidelines.
Estate of Richmond , 2005 ND 145, 701 N.W.2d 897
If the evidence presented in opposition to a motion for summary judgment is of insufficient caliber or quantity to allow a rational finder of fact to find fraud by clear and convincing evidence, there is no genuine issue of material fact.
Fraud is never presumed, even under circumstances that give rise to a suspicion of fraud.
Case Credit Corp. v. Oppegard's Inc. , 2005 ND 141, 701 N.W.2d 891
Jury instructions do not need to include a definition of a commonly understood word when such a definition has not been requested. Giving a definition of a commonly understood word is a matter of the trial court's discretion.
A jury instruction on issues not raised at trial is erroneous but only constitutes reversible error if the instruction was intended to mislead the jury. A special damages provision controls over a general damages provision.
State v. Jackson , 2005 ND 137, 701 N.W.2d 887
When the court dismisses a criminal information on the basis of its legal interpretation of a criminal statute, and not upon resolution of any factual element of the crime charged, the ruling is not a judgment of acquittal but a quashing of the information from which the State has a right to appeal.
When a sexual offender changes employment address, he must register the change with law enforcement within ten days.
State v. Seglen , 2005 ND 124, 700 N.W.2d 702
The Fourth Amendment prohibition against unreasonable searches and seizures applies only to government action and not to private parties.
Consent is a recognized exception to the warrant requirement, and the State has the burden of proving consent.
A warrantless search of all patrons entering an arena when there is no history of violence or injury is not reasonable and violates the Fourth Amendment.
Lee v. Lee , 2005 ND 129, 699 N.W.2d 842
A child support amount must be established in accordance with the guidelines.
A spousal support award may be modified upon a showing of a material change in circumstances.
Attorney fees in a divorce action are based on a determination of one party's need and the other party's ability to pay.
Ebach v. Ebach , 2005 ND 123, 700 N.W.2d 684
Whether a supporting spouse's early retirement constitutes a material change of circumstances to justify a termination or reduction of spousal support depends on the totality of the circumstances.
Gonzalez v. Gonzalez , 2005 ND 131, 700 N.W.2d 711
Proposed findings prepared by trial counsel become the findings of the court when it affixes its signature to them.
In addressing whether there is evidence of domestic violence that triggers the statutory presumption against the perpetrator receiving custody of a child, the trial court must make specific factual findings and conclusions.
When the trial court decides custody between two fit parents, the court on appeal will not retry the case or substitute its judgment for that of the trial court if there is evidence to support the decision.
Interest of C.H. , 2005 ND 130, 699 N.W.2d 849
A district court's order for involuntary hospitalization must be based on clear and convincing evidence that there is a serious risk the individual will harm himself, others, or property if not hospitalized.
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.
Rolette Co. Social Service Bd. v. B.E. , 2005 ND 101, 697 N.W.2d 333
A dismissal of an action without prejudice may be final and appealable if it has the practical effect of terminating the litigation in the plaintiff's chosen forum.
The state courts have concurrent subject-matter jurisdiction with the tribal courts to determine a support obligation against an enrolled Indian where parentage is not at issue and the parent against whom support is sought is not residing on the Indian reservation.
Interest of R.F. , 2005 ND 102, 697 N.W.2d 311
In some situations it may be reasonable for a doctor to conclude that less restrictive alternatives to hospitalization do not exist.
The State Hospital or treatment facility is not required to look outside North Dakota for treatment options other than hospitalization.
Choice Financial Group v. Schellpfeffer , 2005 ND 90, 696 N.W.2d 504
Where partial summary judgment is rendered for only part of the damages sought by the plaintiff and consideration of further damages is reserved for a later date, the judgment is neither final nor on an entire claim, and there can be no certification of the partial summary judgment as final under N.D.R.Civ.P. 54(b).
Harter v. ND Dept. of Transportation , 2005 ND 70, 694 N.W.2d 677
Section 39-20-04.1(1)(a), N.D.C.C., provides penalties for persons under the age of 21 who drive with a blood alcohol concentration of at least .02 percent by weight.
The rule of lenity, which requires ambiguities in the law to be interpreted in favor of a criminal defendant, does not apply in civil cases.
Strand v. U.S. Bank National Association ND , 2005 ND 68, 693 N.W.2d 918
A party alleging that a contractual provision is unconscionable must demonstrate some quantum of both procedural and substantive unconscionability, and courts are to balance the various factors, viewed in totality, to determine whether the contractual provision is so one-sided as to be unconscionable.
Procedural unconscionability is established when one party is in such a superior bargaining position that it totally dictates all terms of the contract, a preprinted standard form contract is used, there is no possible negotiation of terms, and the only option presented to the other party is to "take it or leave it."
The right to bring a class action is procedural, and a class action is not a substantive remedy.
Contractual provisions which limit or exclude remedies otherwise available at law and leave a party without an effective remedy are substantively unconscionable.
State v. Nelson , 2005 ND 59, 693 N.W.2d 910
If an application for a search warrant contains statements intentionally false or made with reckless disregard for the truth, the false material must be set aside, and if the remaining content is insufficient to establish probable cause, the warrant must be voided and the fruits of the search excluded.
To establish probable cause for a search, there must be a nexus between the place to be searched and the contraband sought.
Mere suspicion that criminal activity is taking place which may warrant further investigation does not rise to a level of probable cause to search.
Jacob v. Nodak Mutual Ins. Co. , 2005 ND 56, 693 N.W.2d 604
Age alone, without other evidence, is insufficient to survive a motion for summary judgment in an age discrimination case.
Section 34-01-20, N.D.C.C., prohibits an employer from discharging an employee for reporting illegalities and requires a report to be made for the purpose of blowing the whistle to expose an illegality.
Section 14-02.4-03, N.D.C.C., does not prohibit a retaliatory discharge for participating in an internal employee investigation.
State v. Arth , 2005 ND 46, 694 N.W.2d 22
A sentence of five years' imprisonment with the last two years suspended for violation of a domestic violence protection order is summarily affirmed under N.D.R.App.P. 35.1(a)(4).
Ingebretson v. Ingebretson , 2005 ND 41, 693 N.W.2d 1
An award of permanent spousal support to a party who requested support for ten years must be supported by sufficient findings and based on the record.
The district court must consider all evidence, including a party's testimony, when determining that party's need for the purpose of awarding spousal support.
A district court is not limited by a party's testimony when awarding spousal support as long as justification is provided for an award that exceeds the party's request.
Brandt v. Somerville , 2005 ND 35, 692 N.W.2d 144
N.D.C.C. ch. 10-19.1 governs claims for breaches of fiduciary duties by those in control of a close corporation, and a trial court's findings about claims for breaches of fiduciary duties are reviewed under the clearly erroneous rule.
An agreement to restrict the transfer of stock of a close corporation will be upheld unless the price or terms of the agreement are unreasonable under all the circumstances.
In a shareholder action, a trial court has discretion to determine an appropriate remedy for violations of N.D.C.C. ch. 10-19.1 by those in control of a close corporation.
Wigginton v. Wigginton , 2005 ND 31, 692 N.W.2d 108
An award of restricted visitation is not clearly erroneous when based on evidence in the record.
The effective date of a child support obligation can be different from the date of the motion to modify if there are sufficient good reasons for it.
An allocation of income tax dependency exemptions, based on the evidence in the record, is not clearly erroneous.
Mann v. ND Tax Commissioner , 2005 ND 36, 692 N.W.2d 490
A final order or judgment is necessary for appealability in an injunction action.
An appeal from an order denying reconsideration does not present the Supreme Court with the merits of the original order requested to be reconsidered, but presents for review only whether the district court abused its discretion in deciding the movant either did or did not offer sufficient grounds to reconsider the previous decision.
The Supreme Court exercises its supervisory jurisdiction over lower courts rarely to rectify errors or to prevent injustice when no adequate alternative remedies exist.
Interest of D.P.O. , 2005 ND 39, 692 N.W.2d 128
On appeal, an issue will not be decided if it has become moot because events have occurred which make it impossible for the Court to issue relief or the passage of time has made the issue moot.
The decision to award grandparents visitation separate from the mother's is not clearly erroneous when it is in the best interest of the child and is based on consideration of the evidence in the record.
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.
Gibb v. Sepe , 2004 ND 227, 690 N.W.2d 230
A spousal support award resulting from the parties' stipulation should be modified by the trial court only upon a showing of a material change in circumstances.
The party advocating the modification bears the burden of proving a material change occurred.
An award of attorney fees is an abuse of discretion when the prevailing party failed to show need, inability to pay, how the fees were incurred, or that the appeal was frivolous.
Foster v. Foster , 2004 ND 226, 690 N.W.2d 197
A custody determination should be based on the best interests of the child and will not be overturned unless clearly erroneous.
Failure to allow a party 10 days to object to proposed findings of fact before a judgment is filed is harmless error because N.D.R.Ct. 7.1(b)(3) and N.D.R.Civ.P. 52(b) provide a remedy for that party.
A guardian ad litem may make a custody recommendation when advocating the best interests of the child.
Greywind v. State , 2004 ND 213, 689 N.W.2d 390
Informing a defendant of the prospect of receiving a harsher sentence if he were to go to trial is not coercion sufficient to render a guilty plea involuntary.
If a defendant pled guilty knowingly and voluntarily, he cannot show actual prejudice resulted from his trial attorney's failure to more thoroughly investigate the case before he pled guilty.
Recantation is looked upon by courts with suspicion and disfavor.
State v. Donovan , 2004 ND 201, 688 N.W.2d 646
Suppression of evidence in a criminal case is proper when the defendant is able to show the search warrant was issued in reliance upon an affidavit containing false or misleading statements.
Credibility of an informant who is a member of the "criminal milieu" must be established by more than easily obtainable facts.
Heng v. Rotech Medical Corp. , 2004 ND 204, 688 N.W.2d 389
When an employee policy manual expressly states that it does not create a contract, the employee is on notice that the manual preserves the presumption of employment at will.
A prima facie case for retaliatory discharge under the whistle-blower statute is established by showing (1) the employee engaged in protected activity; (2) the employer took adverse action against the employee; and (3) the existence of a causal connection between the employee's protected activity and the employer's adverse action.
Reporting a suspected violation of law to an employer is protected activity, and the violation need not be reported to outside authorities.
Whether an employee has made a report in good faith is a question of fact, and summary judgment dismissing the employee's retaliatory discharge claim is appropriate only if reasonable minds could only conclude that the reports were made solely for a purpose other than reporting an illegality.
Circumstantial evidence, including proximity in time between the protected activity and the adverse employment action, may provide an inference of causation.
Interest of E.R. , 2004 ND 202, 688 N.W.2d 384
Although incarceration, by itself, does not establish abandonment of a child for purposes of terminating parental rights, a probability of harm to the child may be established by prognostic evidence that a parent's current inability to care for the child will continue long enough to render improbable the successful assimilation of the child into a family if the parent's rights are not terminated.
R.R. v. G. H. , 2004 ND 197, 690 N.W.2d 429
Visitation order is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Estate of Bergman , 2004 ND 196, 688 N.W.2d 187
Assets conveyed by an institutionalized spouse to a community spouse before the institutionalized spouse's death and traceable to the community spouse's estate are subject to a claim for Medicaid benefits provided to the institutionalized spouse.
Transfers by a surviving community spouse before death, which are made for less than a reasonably equivalent value and which render the community spouse's estate insolvent, may be voided under N.D.C.C. ch. 13-02.1.
Staley v. Staley , 2004 ND 195, 688 N.W.2d 182
Rehabilitative spousal support is appropriate when it is possible to restore an economically disadvantaged spouse to independent economic status, or to equalize the burden of divorce by increasing the disadvantaged spouse's earning capacity.
Kouba v. Hoeven , 2004 ND 185, 687 N.W.2d 491
A petitioner for a writ of mandamus must demonstrate a clear legal right to performance of the act sought to be compelled by the writ and must demonstrate there is no other plain, speedy, and adequate remedy in the ordinary course of the law.
Nodak Mutual Ins. Co. v. Wamsley , 2004 ND 174, 687 N.W.2d 226
The significant-contacts approach to choice-of-law questions is appropriate in contract cases with multistate factual contacts.
In insurance contract cases, consideration of predictability of results favors application of the law of the state in which the insurance policy was negotiated, issued, and the premiums paid.
Grinnell Mutual Reinsurance Co. v. Lynne , 2004 ND 166, 686 N.W.2d 118
To successfully oppose a motion for summary judgment, a party must not rely upon unsupported or conclusory allegations.
An insurance policy is not ambiguous when the plain language of the policy precludes coverage.
A causal relationship exists when damage to property arises out of the inherent nature of the work performed.
A house is real property and a fixture when the actions of the owner manifest an intention to have the house remain on the property permanently.
Smith Enterprises v. In-Touch Phone Cards , 2004 ND 169, 685 N.W.2d 741
A determination of the terms of an oral contract is a question of fact and will be reversed on appeal only if clearly erroneous.
To prevail on a claim of unlawful interference with business, a plaintiff must prove: (1) the existence of a valid business relationship or expectancy; (2) knowledge by the interferer of the relationship or expectancy; (3) an independently tortious or otherwise unlawful act of interference by the interferer; (4) proof the interference caused the harm sustained; and (5) actual damages to the party whose relationship or expectancy was disrupted.
Ficek v. Morken , 2004 ND 158, 685 N.W.2d 98
The public duty doctrine, that there is no enforceable duty in tort when a statute or common law imposes upon a public entity a duty to the public at large rather than to a particular class of individuals, is incompatible with North Dakota law.
Nationwide Mutual Ins. v. Lagodinski , 2004 ND 147, 683 N.W.2d 903
A tractor and trailer is subject to motor vehicle registration when it is used on public highways for transportation.
The doctrine of reasonable expectations does not operate to provide coverage when the policy language is not ambiguous.
An insurance policy is not ambiguous when the plain language of the policy operates to preclude coverage.
State v. Sims , 2004 ND 144, 683 N.W.2d 884
The district court may provide for the possibility of work release in accordance with the guidelines of a correctional facility.
City of Fargo v. Habiger , 2004 ND 127, 682 N.W.2d 300
A judge is not obligated to withdraw as judge under the change-of-judge statute if the record does not reflect compliance with statutory procedures.
The waiver of the right to appointed counsel is effective if the waiver is made voluntarily, knowingly, and intelligently.
Character evidence may be introduced to demonstrate a defendant's propensity for veracity.
State v. Decoteau , 2004 ND 139, 681 N.W.2d 803
The reasonable suspicion standard does not require an officer to rule out every potential innocent excuse for the behavior in question before stopping a vehicle for investigation.
An officer's knowledge that a driver's license was suspended when stopped by the same officer one week earlier is sufficient to create reasonable suspicion of unlawful activity and support an investigatory stop of the vehicle.
State v. Ehli , 2004 ND 125, 681 N.W.2d 808
A probation condition prohibiting a sex offender from having contact with his minor children is not a de facto termination of parental rights.
State v. Smestad , 2004 ND 140, 681 N.W.2d 811
A trial court may allow testimony as to the context of events, if the testimony is required to prove the essential statutory elements of the crime and the district court has weighed the probative value against the prejudicial nature of the testimony.
T.E.J. v. T.S. , 2004 ND 120, 681 N.W.2d 444
The court may impute income to determine an obligor's future support obligation when the obligor has made a voluntary change in employment.
A court must grant such rights of visitation as will enable the non-custodial parent and child to maintain a parent-child relationship, and the court may restrict or deny this right only if visitation is likely to endanger the child's physical or emotional health.
State v. Nordahl , 2004 ND 106, 680 N.W.2d 247
A district court does not abuse its discretion when it revokes probation for failure to pay restitution without holding a hearing when a defendant agreed to restitution as part of a plea agreement.
Greybull v. State , 2004 ND 116, 680 N.W.2d 254
Raising issues in an application for post-conviction relief that were not raised on direct appeal or in prior applications for post-conviction relief, absent any showing of excuse or justification is an abuse of process.
Failure to show any excuse for not having raised the issue of untimely notice of intent to enhance sentence under the special dangerous offender statute in a prior proceeding makes raising the issue on post-conviction relief an abuse of process.
State v. Tweeten , 2004 ND 90, 679 N.W.2d 287
A district court may not dismiss a case with prejudice for prosecutorial misconduct unless a hearing is held in which it is determined by clear and convincing evidence the prosecution has proceeded in bad faith.
Wetsch v. ND Dept. of Transportation , 2004 ND 93, 679 N.W.2d 282
Refusal to submit to an onsite screening test constitutes a violation of informed consent law and may properly result in a one-year suspension of an individual's driver's license.
An individual's demand to have blood drawn for a chemical screening in a medical environment, such as a hospital, constitutes refusal under North Dakota's informed consent statute.
State v. Clark , 2004 ND 85, 678 N.W.2d 765
An appellate court exercises its authority to notice obvious error cautiously and only in exceptional circumstances in which the defendant has suffered a serious injustice.
A prosecutor's closing arguments may properly draw reasonable conclusions and argue permissible inferences from the evidence, but a prosecutor may not create evidence by argument or by incorporating personal beliefs into the argument.
An argument that asks jurors to place themselves in the shoes of a party is improper and should be avoided.
State v. Guscette , 2004 ND 71, 678 N.W.2d 126
A person is seized under the Fourth Amendment if, in view of all the surrounding circumstances, a reasonable person would believe he or she is not free to leave the area.
A seizure does not occur under the Fourth Amendment simply because a law enforcement officer asks a person questions, and as long as reasonable persons would feel free to disregard the officer and go about their business, the encounter is consensual and no reasonable suspicion of criminal activity is required.
Consent to a search is voluntary if, under the totality of the circumstances, it is the product of an essentially free choice and not the product of coercion.
Jundt v. Jurassic Resources , 2004 ND 65, 677 N.W.2d 209
What could have been presented in a prior appeal may not be heard on a later appeal.
A N.D.R.Civ.P. 68 settlement offer must present a clear baseline from which plaintiffs may evaluate the merits of their case relative to the value of the offer.
To trigger the mandatory cost-shifting provision, a defendant seeking costs under N.D.R.Civ.P. 68 must show that the offer was more favorable than the judgment.
Groleau v. Bjornson Oil Co. , 2004 ND 55, 676 N.W.2d 763
Under premises liability law, a defendant must have had control over the property where the injury occurred in order to find the defendant owed a duty to entrants upon the property.
Although a landowner generally owes a duty to lawful entrants to maintain property in a reasonably safe condition, the landowner's duty is limited when a dangerous condition is known or obvious to the entrant.
A landowner is not liable to entrants for injury caused by a known or obvious danger unless the landowner should anticipate the harm despite such knowledge or obviousness.
The determination whether a dangerous condition is open and obvious is generally a question of fact for the trier of fact.
Muhammed v. Welch , 2004 ND 46, 675 N.W.2d 402
Service on a decedent's widower is not service on the decedent's estate.
The fraudulent concealment necessary to extend a statute of limitations an additional year under section 28-01-24, N.D.C.C., relates to concealment of the cause of action, not concealment of the death of a party.
Equitable estoppel may preclude application of a statute of limitations as a defense by one whose actions mislead another, inducing that person to not file a claim within the statutory period.
An insurance adjuster acting for an insurance company may be considered the agent of the insured so as to estop the defendant-insured from raising the statute of limitations defense.
Representatives of a deceased defendant may have an affirmative duty to inform the plaintiff of the defendant's death.
First Union National Bank v. RPB 2, LLC , 2004 ND 29, 674 N.W.2d 1
Consideration is not required for the release or waiver of a mechanic's lien to be effective.
Once a lien claimant files a signed waiver or release of a mechanic's lien, the lien may not be revived by the subsequent filing of another lien.
Fraud in procuring release of a mechanic's lien must be proved by clear and convincing evidence.
Interest of J.P. and D.P. , 2004 ND 25, 674 N.W.2d 273
Under state law, a juvenile court may terminate parental rights if a child is deprived, the conditions and causes of the deprivation are likely to continue, and the child is suffering, or will in the future probably suffer, serious physical, mental, moral, or emotional harm.
Under the Indian Child Welfare Act, a petitioner for termination of parental rights must (1) demonstrate by clear and convincing evidence that active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts were unsuccessful, and (2) prove continued custody of a child by a parent or Indian custodian is likely to result in serious emotional or physical damage to the child by proof beyond a reasonable doubt.
Gross v. ND Dept. of Human Services , 2004 ND 24, 673 N.W.2d 910
The Dept. of Human Services may place a Medicaid recipient in the lock-in program for excessive utilization of medical services from more than one provider when those excessive medical services may increase the possibility of adverse affects to the recipient's health or may result in a decrease in the overall quality of care to the recipient and when there is little or no evidence of a medical need.
Mock v. Mock , 2004 ND 14, 673 N.W.2d 635
A party seeking a change of child custody is entitled to an evidentiary hearing if he presents a prima facie case by alleging, with supporting affidavits, sufficient facts which, if uncontradicted, would support a custody change.
Potential endangerment to a child's physical or mental health may be a significant change of circumstances supporting a modification of custody.
The district court may consider pre-divorce conduct when the facts were unknown to the court at the time of the original stipulation.
State v. Morales , 2004 ND 10, 673 N.W.2d 250
A court does not err by not giving a jury instruction on license or privilege on a criminal trespass charge when there is no evidence to support it.
A court does not err when it does not include a jury instruction on a lesser-included offense when the evidence does not permit the jury to rationally find the defendant not guilty of the greater offense and guilty of the lesser offense.
A jury verdict of assault on a police officer will be affirmed when the evidence is viewed in the light most favorable to the verdict, no rational trier of fact could have found that the essential elements of the crime were established beyond a reasonable doubt.
Lee v. ND Dept. of Transportation , 2004 ND 7, 673 N.W.2d 245
In a driver's license administrative hearing involving an Intoxilyzer test, documentation requirements are not met when the approved method of administering the test is not admitted into evidence.
Interest of W.O. , 2004 ND 8, 673 N.W.2d 264
An appeal of a district court's amended order revoking less restrictive treatment is rendered moot once the patient is released from the hospital and is placed on an identical order for less restrictive treatment.
State v. Backlund , 2003 ND 184, 672 N.W.2d 431
An adult is guilty of luring a minor by computer when (1) the adult knows the character and content of a communication that, in whole or in part, implicitly or explicitly discusses or depicts actual or simulated nudity, sexual acts, sexual contact, sadomasochistic abuse, or other sexual performances, (2) the adult willfully uses the computer communication system to initiate or engage in such communication with a person the adult believes to be a minor, and (3) by means of that communication, the adult willfully importunes, invites, or induces the person the adult believes to be a minor to engage in sexual acts or have sexual contact with the adult, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for the adult's benefit, satisfaction, lust, passions, or sexual desires.
North Dakota has jurisdiction to prosecute a defendant who solicits a person believed to be a minor to engage in sexual acts from a computer in Minnesota, where the communication is received in North Dakota and the defendant travels to and is arrested in North Dakota.
North Dakota's luring-a-minor-by-computer law does not violate the Commerce Clause or the First Amendment.
The registration and notification provisions for sexual offenders do not violate procedural due process or double jeopardy.
Reineke v. Reineke , 2003 ND 167, 670 N.W.2d 841
The Ruff-Fischer guidelines apply to both property division and spousal support, which ordinarily must be considered together.
Both economic and noneconomic fault are proper factors for the trial court to consider in dividing marital property.
The appointment of a custody investigator or a guardian ad litem is committed to the trial court's discretion.
Litoff v. Pinter , 2003 ND 172, 670 N.W.2d 860
Although visitation between a child and the noncustodial parent is ordinarily presumed to be in the best interest of the child, visitation may be curtailed or eliminated entirely if it is likely to endanger the child's physical or emotional health.
Akerlind v. Buck , 2003 ND 169, 671 N.W.2d 256
The credibility of witnesses, including expert witnesses, and the weight to be given their testimony, are questions for the trier of fact.
A partnership agreement controls whether partners are entitled to compensation for services provided to the partnership.
A partner breaches a fiduciary duty if the partner fails to keep fiduciary property separate and distinct and uses partnership property for the partner's personal benefit.
Whether a person has breached a fiduciary duty is a finding of fact.
Ruggles v. Sabe , 2003 ND 159, 670 N.W.2d 356
A vested remainderman has an action for waste against a life tenant.
Torgerson v. Torgerson , 2003 ND 150, 669 N.W.2d 98
An obligor need not show a material change in circumstances if the motion to modify child support is brought more than one year after entry of the support order.
Income may not be imputed based on underemployment absent adequate evidence of the obligor's gross income from earnings and of the prevailing amounts earned in the community by persons with similar work history and occupational qualifications.
Under current child support guidelines, depreciation is not added back into an obligor's net income to determine support obligations.
Collette v. Clausen , 2003 ND 129, 667 N.W.2d 617
A supplier of a chattel can be liable for negligent entrustment if the supplier knows or has reason to know the person who he supplies the chattel to is likely to use the chattel in a manner involving unreasonable risk of physical harm to himself or others.
A supplier of a chattel has a duty to warn of dangers if the supplier knows or has reason to know the chattel is or is likely to be dangerous for the use for which it is supplied; has no reason to believe those for whose use the chattel is supplied will realize its dangerous condition; and fails to exercise reasonable care to inform the users of its dangerous condition or of the facts which make it likely to be dangerous.
McKechnie v. Berg , 2003 ND 136, 667 N.W.2d 628
Admitting incompetent evidence in a bench trial is not reversible error unless it induced an improper finding.
The law on partition of property controls the distribution of property accumulated by unmarried partners and cohabitants.
Although legal ownership of property is strong evidence of an intention to not share property, legal ownership is not dispositive when the person who is not the legal owner has financially contributed to the acquisition of the property.
Gonzalez v. Tounjian , 2003 ND 121, 665 N.W.2d 705
A lessor who retains control over common areas of an apartment building has a duty to exercise reasonable care to keep the common areas safe.
An expert witness need not be a specialist in a particularized field, have a formal title or specific certification, or be licensed in any particular field. Expert testimony is admissible if the trial court determines the expert's knowledge, training, education, or experience will assist the trier of fact.
The trier of fact in a tort case may award interest on past noneconomic damages.
Interest on future damages is not allowed in a tort case.
Tarnavsky v. McKenzie Co. Grazing Association , 2003 ND 117, 665 N.W.2d 18
Statutes of limitation ordinarily begin to run from the commission of the wrongful act giving rise to the cause of action.
The discovery rule postpones the accrual of a claim until the plaintiff knew or with the exercise of reasonable diligence should have known the wrongful act and its resulting injury, and an objective standard is used for determining knowledge of a potential claim under the discovery rule.
State v. Steen , 2003 ND 116, 665 N.W.2d 688
An order correcting an illegal sentence involves a substantial right and is appealable.
A district court's failure to act, upon motion, to reduce a defendant's criminal sentence within 120 days after sentence is imposed, forecloses its power to reduce a criminal sentence.
Public Service Commission v. Wimbledon Grain Co. , 2003 ND 104, 663 N.W.2d 186
Farmers with unpaid credit-sale contracts with an insolvent grain buyer are "claimants" entitled to participate in the non-bond assets of the trust fund under N.D.C.C. 60-02.1-30, and the Public Service Commission is obligated to marshal the non-bond trust fund assets for their benefit.
Cue v. State , 2003 ND 97, 663 N.W.2d 637
A court is required to give a criminal defendant, upon sentencing, credit for all time spent in custody as a result of the criminal charge or conduct for which the sentence is being imposed.
A defendant has the burden of showing he is entitled to additional sentence credit for time served in custody.
Ramey v. Twin Butte School Dist. , 2003 ND 87, 662 N.W.2d 270
To establish a prima facie case of discrimination for failure-to-hire under the North Dakota Human Rights Act, a plaintiff must show: (1) she is a member of a protected class under the Human Rights Act; (2) she sought and was qualified for the position; (3) she suffered an adverse employment decision; and (4) others not in the protected class were treated more favorably.
K.L.B. v. S.B. , 2003 ND 88, 662 N.W.2d 277
The court can vacate a default judgment when circumstances justify it under a properly raised motion for relief from the judgment under N.D.R.Civ.P. 60(b).
Under N.D.C.C. 14-17-10 the district court is required to order genetic tests only if the request for tests is made when proceedings are pending to adjudicate parentage under the chapter.
Sommers v. Sommers , 2003 ND 77, 660 N.W.2d 586
A party moving to dismiss an appeal for acceptance of benefits of a judgment must clearly establish waiver of the right to appeal by the other party.
Ordinarily, fair market value, not liquidation value, is the proper method of valuing property in a divorce.
In valuing a business that is not going to be liquidated, expenses and theoretical tax liabilities that would only be incurred upon liquidation should not be deducted.
Argabright v. Rodgers , 2003 ND 59, 659 N.W.2d 369
An ostensible agency rests upon conduct or communications of the principal which, reasonably interpreted, causes a third person to believe the agent has authority to act for and on behalf of the principal.
If an agency relationship is denied, the party alleging agency must establish it by clear and convincing evidence.
Questa Resources v. Stott , 2003 ND 51, 658 N.W.2d 756
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.
Koehler v. County of Grand Forks , 2003 ND 44, 658 N.W.2d 741
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.
American Ntl. Fire Ins. Co. v. Hughes , 2003 ND 43, 658 N.W.2d 330
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.
Gronfur v. Workers Comp. , 2003 ND 42, 658 N.W.2d 337
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.
Steinbach v. State , 2003 ND 46, 658 N.W.2d 355
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.
State v. Jahner , 2003 ND 36, 657 N.W.2d 266
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. Anderson , 2003 ND 30, 657 N.W.2d 245
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.
D.D.I., Inc. v. State Tax Commissioner , 2003 ND 32, 657 N.W.2d 228
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.
Howe v. Microsoft Corporation , 2003 ND 12, 656 N.W.2d 285
Class certification is not automatically precluded because individual issues will remain after the common questions of law and fact have been resolved.
A trial court is to determine whether to certify a class action without delving into the merits of the case.
A motion for class certification is not to be treated as a motion for summary judgment, and the plaintiffs are not required to present evidence to support each element of their claims.
At the class certification stage, a trial court may consider expert evidence as long as the basis of the expert's opinion is not so blatantly flawed that, on its face, it would be inadmissible as a matter of law.
Jundt v. Jurassic Resources , 2003 ND 9, 656 N.W.2d 15
A trial court abuses its discretion only when it acts in an unreasonable, arbitrary, or unconscionable manner, when its decision is not the product of a rational mental process leading to a reasoned decision, or when it misinterprets or misapplies the law.
A governor of a limited liability company must discharge his or her duties in good faith.
All members in a closely held limited liability company owe one another a duty to act in an honest, fair, and reasonable manner in the operation of the limited liability company.
Higgins v. Trauger , 2003 ND 3, 656 N.W.2d 9
Collusion does not require fraudulent conduct.
Whether collusion has occurred is a finding of fact which will not be reversed on appeal unless it is clearly erroneous.
State v. Hammeren , 2003 ND 6, 655 N.W.2d 707
The defendant has the burden of proving, by a preponderance of evidence, the affirmative defense of entrapment.
The statute permitting minors to be transferred from juvenile court to the district court for certain crimes was enacted to treat minors as adults for purposes of prosecution. Thus, law enforcement officers are entitled to investigate minors engaged in drug-related activity the same way they would an adult.
Gawryluk v. Poynter , 654 N.W.2d 400 (N.D. 2002)
The Duhig rationale applies to a grantor's overconveyance of mineral interests, and if the grantor does not own enough mineral interests to satisfy the conveyance, the conveyance is construed as a transfer of all the grantor's mineral interests.
Hamilton v. Oppen , 2002 ND 185, 653 N.W.2d 678
Averaging individual jurors' estimates of percentages of fault is not improper in a quotient verdict, but the jurors' prior agreement to be bound by the result of the computation invalidates the verdict.
The trial court's responsibility is to make certain expert testimony is reliable as well as relevant.
Relevant photographs may be excluded from evidence if their probative value is substantially outweighed by the danger of unfair prejudice.
State v. Skorick , 2002 ND 190, 653 N.W.2d 698
A trial court errs when it permits witnesses to remain in the courtroom for purposes of returning as rebuttal witnesses despite a request for sequestration. The error may be harmless when the testimony by the rebuttal witness did not affect the defendant's substantial rights.
The control and scope of opening and closing arguments is largely a matter left to the discretion of the trial court, and a case will not be reversed on the ground that the prosecutor exceeded the scope of permissible closing argument unless a clear abuse of discretion is shown.
State v. Jones , 2002 ND 193, 653 N.W.2d 668
A defendant charged with a felony has a right to a preliminary hearing and, if assisted by counsel, can waive this right.
A defendant must prove alleged false statements in an affidavit in support of a search warrant were made knowingly and intentionally, or with reckless disregard for the truth.
A motion to dismiss based on official misconduct is properly denied when there was no evidence to support any act of misconduct by the prosecutor.
Giese v. Giese , 2002 ND 194, 653 N.W.2d 663
A party cannot demand a change of judge under N.D.C.C. 29-15-21 when the assigned judge has ruled upon any matter pertaining to an action or proceeding in which the demanding party was heard or had an opportunity to be heard.
In deciding whether to award attorney fees to a party in a divorce case, the court may consider whether one party's actions have unreasonably increased the time and effort spent on the dispute.
Hilgers v. Hilgers , 2002 ND 173, 653 N.W.2d 79
A decision to appoint a guardian ad litem for a child is within the trial court's discretion, and its determination will not be overturned absent an abuse of discretion.
The trial court errs by not deciding the issue of visitation when both parties present requests for modification that are different from the existing visitation provisions.
The standard of review for the effective date of a child support modification is abuse of discretion. The burden is on the obligor to present sufficient documentation of income to justify a modification.
A party seeking custody modification is entitled to an evidentiary hearing if the party provides sufficient evidence that a material change in circumstances has occurred since the prior order and modification is necessary to serve the best interests of the child.
Obrigewitch v. Director, N.D. Dept. of Transportation , 2002 ND 177, 653 N.W.2d 73
Probable cause to arrest a person for being in actual physical control of a vehicle while under the influence of intoxicating liquor can exist without establishing the location of the ignition key.
Continually avoiding or ignoring a police officer's request to submit to a blood alcohol test can be a refusal to submit to a chemical test.
Huntress v. Griffey , 2002 ND 160, 652 N.W.2d 351
When the trial court's findings of fact are inadequate, an appellate court is unable to properly review the trial court's decision.
Grad v. Jepson , 2002 ND 153, 652 N.W.2d 324
The standard of review for a minor child's name change petition is abuse of discretion.
"Proper and reasonable cause" includes consideration of the best interests of the child in the context of a petition to change a minor child's name.
Comstock Construction, Inc. v. Sheyenne Disposal, Inc. , 2002 ND 141, 651 N.W.2d 656
A trial court's denial of a motion for new trial on the basis of sufficiency of the evidence is reviewed under the abuse-of-discretion standard.
N.D.R.Civ.P. 6(e), which authorizes the addition of three days whenever a party has a set period to do an act after service of notice or other paper by mail, applies to the time for commencing and filing an action after a written demand is served on a lienholder.
Boehm v. Boehm , 2002 ND 144, 651 N.W.2d 672
The decision to grant or deny a motion for continuance is within the trial court's discretion, and its determination will not be overturned absent an abuse of discretion.
A trial court's marital property valuations within the range of evidence are not clearly erroneous.
In setting the child support obligation, a trial court uses the most recent information available.
Mr. G's Turtle Mountain Lodge v. Roland Township , 2002 ND 140, 651 N.W.2d 625
An attempted appeal from a judgment that has been voluntarily paid and formally satisfied of record fails for lack of jurisdiction.
Summary judgment is appropriate when a party fails to establish the existence of a material factual dispute on an essential element of his claim on which he will bear the burden of proof at trial.
A communication is not libelous if the language used is not fairly susceptible of a defamatory meaning.
U.S. Bank v. Koenig , 2002 ND 137, 650 N.W.2d 820
Grants in a deed are interpreted in favor of the grantee, except a reservation in any grant is interpreted in favor of the grantor.
Repugnant words in a deed must be reconciled by interpreting the deed in a manner that gives effect to the repugnant clause subordinate to the general intent and purpose of the deed.
Meide v. Stenehjem , 2002 ND 128, 649 N.W.2d 532
When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone if possible.
Extrinsic evidence is considered only if the language of the agreement is ambiguous and the parties' intentions cannot be determined from the writing alone.
BeauLac v. BeauLac , 2002 ND 126, 649 N.W.2d 210
To find a person in contempt of a prior court order, that person must have had actual notice or knowledge of that order.
Although the courts do not look favorably upon separating siblings in custody cases, a split custody award is not absolutely prohibited where the trial court finds that type of custody arrangement desirable under the circumstances.
Although a trial court should make specific factual findings and conclusions regarding the statutory presumption against awarding custody to a person who has perpetrated domestic violence, specific findings are not required when there is insufficient evidence of domestic violence to trigger the presumption.
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 warr