Summer 2019 Summer 2019 Gavel | Page 25

Lupo v. McNeeley, 2019 ND 104, 925 N.W.2d 457. Filed 4-11-19. Markegard v. Willoughby, 2019 ND 170. Filed 6-27-19. In a personal injury case, the Supreme Court affirmed the district court judgment dismissing the plaintiff ’s complaint with prejudice due to the expiration of the statute of limitations prior to commencement of suit. The Supreme Court stated the tolling provisions in N.D.C.C. § 28-01-32 did not apply while the defendant was out of state, because even while out of state, the state of North Dakota maintained personal jurisdiction over the defendant because the defendant committed a tort within the state and was subject to service of process by publication. Therefore, the courts of North Dakota had jurisdiction over the defendant even in her absence from the state. Because the record did not reflect that service of process was ever effectuated on the defendant, within six years of the motor vehicle accident, the plaintiff ’s suit was time barred even though it appears the defendant was not in the state of North Dakota for most of the time following the accident. This is a divorce/spousal support case. N.D.C.C. § 14-05-24.1(3) authorizes a court to terminate spousal support based solely on the receiving spouse’s cohabitation with another, unless agreed to by the parties in writing. This statute became effective in 2015. In this case, the Supreme Court held that a written spousal support agreement in the parties’ marital termination agreement, entered into after the 2015 statutory amendment regarding cohabitation, must expressly provide for continued spousal support, to a cohabiting spouse, or else the statute ending spousal support to the cohabiting spouse will apply. In this case, the marital termination agreement was executed in April 2017. Its terms were silent about whether spousal support would terminate upon cohabitation by one of the former spouses. Because the parties did not agree in writing that spousal support would not terminate upon cohabitation, the statute applies and there would be no more spousal support for the cohabiting spouse. Interiors by France v. Mitzel Contractors, Inc., 2019 ND 158. Filed 6-27-19. Lizakowski v. Lizakowski, 2019 ND 177. Filed 7-2-19. A dispute over payment for building materials was originally brought in small claims court. It was removed by the defendant. After removal, the plaintiff added a new defendant who was not a defendant when the case was commenced in small claims court. On appeal, the Supreme Court interpreted N.D.C.C. § 27-08.1-04 that allows a prevailing plaintiff to recover attorney’s fees if the defendant removes the matter from small claims court to district court. In this case, the Supreme Court upheld the judgment of the district court denying plaintiff recovery of attorney’s fees against the defendant, Mitzel Builders, Inc., because the latter was not a defendant in the small claims court proceeding when it was removed to district court. Mitzel was added after the removal. In this divorce case, the Court reiterated that separate property of the parties, whether brought into the marriage, inherited, or otherwise, must initially be included in the marital estate. The Court said it has never held that property brought into a marriage or acquired by gift or inheritance by one spouse, be irrevocably set aside to that spouse. However, the Court stated, after including all of the parties’ property in the marital estate, a court may then consider the duration of the marriage and origin of the property in deciding an equitable property distribution. The Court also reiterated previous holdings in stating the actual length of the marriage itself is not the sole factor to consider in determining whether the marriage was of short or long duration. A court must also consider the period of cohabitation of the parties and how long they were together before the marriage. State v. Hollis, 2019 ND 163. Filed 6-27-19. In this criminal case, the police responded to a domestic disturbance. The defendant appeared drunk. He was handcuffed and the police performed a pat- down search, during which time the officer felt a hard object, approximately three-inches by three-inches, which was not a wallet. It turned out to be a small scale and probably drug paraphernalia. Because the defendant was intoxicated, he was brought to a local detoxification center, as he appeared to be a danger either to himself or to others. Even though the scale was illegally seized during an illegal pat-down search, the Supreme Court held, under the “inevitable discovery doctrine,” that because the scale would have been found during a routine inventory search at the detox detention center, it was admissible in evidence in the drug possession case against the defendant. Therefore, the defendant’s motion to suppress the scale evidence was properly denied in the district court. SUMMER 2019 25