Opinions

Higginbotham v. WSI, et al. 2014 ND 147
Docket No.: 20140019
Filing Date: 7/17/2014
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: Whether a potential commute or relocation is unreasonably expensive cannot be determined when the employee has not yet searched for or been offered employment.
Functional limitations at the time the claimant was performing a job should be considered when determining whether an employment option presents an opportunity for substantial gainful employment.
When there is no evidence of a functional limitation during the development of a vocational rehabilitation plan, WSI should develop the plan without considering the alleged limitation.

Finstad, et al. v. Ransom-Sargent Water Users, Inc., et al. 2014 ND 146
Docket No.: 20130222
Filing Date: 7/19/2014
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: North Dakota law does not recognize the economic duress doctrine.
A provision of a contract must in and of itself be inherently illegal to be unlawful.

Nieuwenhuis v. Nieuwenhuis 2014 ND 145
Docket No.: 20130394
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: Duress occurs when an individual acts as a result of coercion or when the individual's actions are involuntary.
A district court abuses its discretion by vacating only portions of a judgment.
Implied findings are insufficient for an award of attorney's fees.

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).