Opinions

St. Claire v. State 2002 ND 10
Docket No.: 20010133
Filing Date: 1/15/2002
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Neumann, William

Highlight: A trial court may summarily dismiss an application for post-conviction relief if there is no genuine issue of fact and the moving party is entitled to judgment as a matter of law.

Disciplinary Board v. Crary 2002 ND 9
Docket No.: 20010200
Filing Date: 1/15/2002
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A lawyer may not draft a will that includes a substantial testamentary gift to the lawyer or the lawyer's parent, child, sibling, or spouse, unless the client is related to the beneficiary. Disbarment orderd.

City of Fargo v. Tipler 2002 ND 8
Docket No.: 20010209
Filing Date: 1/15/2002
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: Juries do not have a right to decide a case contrary to law or fact, but instead, must accept the law from the trial court and apply the law to the facts.

Interest of J.S. (CONFIDENTIAL) (see Docket Memo) 2002 ND 7
Docket No.: 20010314
Filing Date: 1/15/2002
Case Type: Appeal - Civil - Mental Health
Author: VandeWalle, Gerald

Highlight: Before a court may order the extension of a continuing-treatment order it must find the patient is mentally ill, and there is a reasonable expectation that, if not treated, there exists a serious risk of harm to the patient, others, or property.
In some cases, a reporting doctor may reasonably conclude that less restrictive alternatives to hospitalization simply do not exist.

Disciplinary Board v. Swanson (CON. W/20010161)(CROSS-REF W/990357-990358) 2002 ND 6
Docket No.: 20010160
Filing Date: 1/15/2002
Case Type: Discipline - Attorney - Original Proceeding
Author:

Highlight: Disbarment is an appropriate sanction when an attorney violates numerous rules of professional conduct involving a lack of diligence, and the attorney has a prior disciplinary history involving similar conduct.

State v. Palmer (CONSOLIDATED W/20010124,20010125,& 20010126) 2002 ND 5
Docket No.: 20010123
Filing Date: 1/15/2002
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: To establish a failure to comply with the statutory process for drawing a jury, the complaining party must provide a factual basis showing the process was prejudicial, actually excluded, systematically excluded, or statistically excluded a fair cross section of the population.
Ordinarily, a claim of ineffective assistance of counsel should be resolved in a post- conviction relief proceeding where the parties can fully develop a record on the issue of counsel's performance and its impact on the defendant's case.

State v. Weaver 2002 ND 4
Docket No.: 20010083
Filing Date: 1/15/2002
Case Type: Appeal - Criminal - Misc. Felony
Author: Neumann, William

Highlight: In reviewing a trial court's denial of a motion for judgment of acquittal, the evidence is viewed in the light most favorable to the prosecution and the appellate court determines only whether there is evidence which could have allowed the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.
When a defendant adopts an all-or-nothing trial strategy and fails to request instructions on lesser included offenses, the trial court's failure to instruct on lesser included offenses does not constitute obvious error.

State v. Marshall (Consolidated w/20010253) 2002 ND 3
Docket No.: 20010193
Filing Date: 1/15/2002
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Denials of N.D.R.Crim.P. 35(a) motion for correction of sentence and N.D.R.Crim.P. 36 motion for correction of a clerical mistake in sentence are summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Terry v. Terry 2002 ND 2
Docket No.: 20010039
Filing Date: 1/4/2002
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: A party seeking to set aside a judgment based upon a stipulation must show that, under the law of contracts, there is justification for setting aside the stipulation.
Rule 60(b), N.D.R.Civ.P., which sets forth the grounds for vacating a judgment, is not to be used to relieve a party from free, calculated, and deliberate choices.

Jaskoviak v. Gruver, et al. 2002 ND 1
Docket No.: 20010065
Filing Date: 1/3/2002
Case Type: Appeal - Civil - Malpractice
Author: Sandstrom, Dale

Highlight: Evidence submitted with a motion for reconsideration after summary judgment has been granted is untimely.
Generally, an integral part of the physician's overall obligation to the patient is the duty of reasonable disclosure of the available choices with respect to the proposed therapy and of the material and known risks potentially involved in each.
In an informed consent case, expert testimony is generally necessary to identify the risks of treatment, their gravity, likelihood of occurrence, and reasonable alternatives.