Opinions

Middleton v. State 2014 ND 144
Docket No.: 20130395
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: To demonstrate prejudice in an ineffective assistance of counsel claim, the defendant must establish a reasonable probability that but for counsel's errors, the result of the proceeding would have been different, and the defendant must specify how and where trial counsel was incompetent and the probable different result.
A motion for new trial must specify the alleged defects and errors with particularity. The defendant must assert all alleged errors in a motion for new trial.
If a defendant moves for a new trial, he is limited on appeal to the grounds presented to the district court in the motion.
A per se presumption of prejudice is reserved to the narrow set of cases where counsel fails to perfect a requested appeal.

Estates of Vizenor and Vizenor v. Mesling, et al. 2014 ND 143
Docket No.: 20130161
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: A power of attorney is a written instrument that authorizes one person to act as another person's agent. An agency created under a durable power of attorney also entails a confidential relationship and fiduciary duties.
When a confidential relationship or fiduciary duty exists, the person in whom the confidence is reposed is deemed to be a trustee. All transactions between a trustee and a beneficiary, including gifts, are presumed to be without sufficient consideration and under undue influence.
A presumption substitutes for evidence of the presumed fact until the trier of fact finds from credible evidence that the presumed fact does not exist.

Vetter v. State (cross-reference w/20120015) 2014 ND 142
Docket No.: 20140028
Filing Date: 7/14/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Comes v. State 2014 ND 141
Docket No.: 20140068
Filing Date: 7/14/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Summary disposition of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

State v. Towry 2014 ND 140
Docket No.: 20130423
Filing Date: 7/14/2014
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Criminal judgment for aggravated assault is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Reciprocal Discipline of Wynne 2014 ND 139
Docket No.: 20140227
Filing Date: 7/14/2014
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reprimanded.

Hering v. WSI, et al. 2014 ND 138
Docket No.: 20140030
Filing Date: 7/14/2014
Case Type: Appeal - Administrative - Workers Compensation
Author: Per Curiam

Highlight: A district court judgment affirming an administrative law judge's order, which affirmed WSI's order denying benefits to a claimant, is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

Hann v. Disciplinary Board 2014 ND 137
Docket No.: 20140171
Filing Date: 7/2/2014
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reinstated.

State v. Cook 2014 ND 136
Docket No.: 20140040
Filing Date: 6/27/2014
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: An appellant assumes the consequences and the risk for the failure to file a complete transcript. If the record on appeal does not allow for a meaningful and intelligent review of alleged error, the issue will not be reviewed.
When an appellant fails to comply with the rules of appellate procedure so that meaningful review of his issues is impossible, the appeal may be dismissed.

Matter of Emelia Hirsch Trust 2014 ND 135
Docket No.: 20130365
Filing Date: 6/26/2014
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: A district court has discretion to determine claims are frivolous and order payment of attorney's fees.
An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation evidencing bad faith.