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
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