Opinions

Johnson v. State 2009 ND 92
Docket No.: 20090008
Filing Date: 6/17/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author:

Highlight: Judgment denying post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Judicial Vacancy in Judgeship No. 3, Southwest Judicial District 2009 ND 91
Docket No.: 20090144
Filing Date: 6/16/2009
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Dickinson.

Eslinger v. WSI, et al. 2009 ND 90
Docket No.: 20080232
Filing Date: 5/27/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: The retirement presumption contained in N.D.C.C. 65-05-09.3(2), providing that a disabled employee who becomes eligible to receive social security retirement benefits is considered to be retired and no longer eligible for workers compensation disability benefits, does not apply to claimants who have been receiving continuing, regular, and ongoing disability benefits since before July 31, 1995, the effective date of the statute.
A claimant, whose medical condition improved and who was ineligible for total disability benefits for an eight-month period after the effective date of the retirement presumption statute, lost her right to rely upon continuing, ongoing disability benefits, and the retirement presumption statute applied to her claim when she reapplied for further disability benefits.

Kappenman, et al. v. Klipfel, et al. 2009 ND 89
Docket No.: 20080184
Filing Date: 5/26/2009
Case Type: Appeal - Civil - Personal Injury
Author: Maring, Mary

Highlight: A township board with actual knowledge of an unusually hazardous or unusulally dangerous condition on an unimproved section line road has a duty to warn travelers of that condition; actual knowledge given to at least one member of the township board impose the duty.
Failing to warn of a known unusually dangerous condition in a road is not covered by discretionary function immunity because it implicates no social, economic, or political policies.
The recreational use immunity statutes do not apply to an unimproved section line road which is made available to the public for nonrecreational travel.
Although a landowner abutting a section line continues to own the land subject to an easement, the landowner does not owe the public a duty to keep the road in a safe condition.
Breach of a duty sounding in tort will give rise to an action based upon nuisance.

Rutherford v. BNSF Railway Co. 2009 ND 88
Docket No.: 20080237
Filing Date: 5/22/2009
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: Equitable estoppel may preclude the application of the statute of limitations by a party whose actions induced another party not to file a claim within a prescribed statutory period. To raise a claim of equitable estoppel before a trial court, a party does not necessarily have to use the word "estoppel"; however, the opposing party has to be provided with fair notice of the claim. An issue not properly raised before the district court may not be raised for the first time on appeal.
The doctrine of unconscionability allows a court to deny enforcement of a contract because of procedural abuses arising from the formation of the contract and substantive abuses pertaining to the contract's terms. To prevail on an unconscionability claim, the party alleging unconscionability must demonstrate some quantum of both procedural and substantive unconscionability, and courts are to balance the factors, viewed in totality, to determine if the particular provision of the contract is so one-sided as to be unconscionable.
A railroad does not have a duty, as a common carrier, to lease its real property. In voluntarily contracting to do so, it is as free as any other private party to impose any condition it desires and the lessee is willing to accept.
Parties to a lease may agree that a structure on real property is classified as either part of the realty or personalty, which shall remain upon or can be removed from the leased real property upon termination of the lease.

Carlson v. Workforce Safety & Insurance, et al 2009 ND 87
Docket No.: 20080250
Filing Date: 5/18/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: A corporation is an artificial person that must act through its agents, and a corporation may not be represented by a non-attorney agent in a legal proceeding.
A request for reconsideration of an administrative agency's informal decision, made on behalf of a corporate entity, is not conduct that could be performed by a non-lawyer.
Pro hac vice admission is required for nonresident attorneys who engage in the practice of law by appearing, either in person, by signing pleadings, or by being designated as counsel in actions filed in administrative agencies, and a motion for pro hac vice admission must be filed no later than 45 days after the service of the pleading, motion, or other paper.
A hearing officer includes an agency head when presiding in an administrative proceeding, or any other person designated to preside in an administrative proceeding.

Neuhalfen v. WSI, et al. 2009 ND 86
Docket No.: 20080175
Filing Date: 5/15/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: To trigger civil penalties for making a false statement in connection with a claim for WSI benefits, WSI must prove: (1) there is a false claim or statement; (2) the false claim or statement is willfully made; and (3) the false claim or statement is made in connection with any claim or application for benefits.
Based upon the civil penalty sought, there are two tests to determine the "materiality" of a willful false statement. If WSI seeks reimbursement for benefits paid, the level of materiality required is proof by WSI that the false claim or false statement caused the benefits to be paid in error. If WSI seeks only forfeiture of future benefits, however, no such causal connection is required.

State v. Corman 2009 ND 85
Docket No.: 20080156
Filing Date: 5/14/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: In an appeal challenging the sufficiency of the evidence, this Court looks only to the evidence and reasonable inferences most favorable to the verdict to ascertain if there is substantial evidence to warrant the conviction.
A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt.
Sufficient evidence exists to find defendant contributed to the delinquency or deprivation of a minor under N.D.C.C. 14-10-06 where testimony established defendant gave minor victim pornographic DVDs and magazines.

Luger, et al. v. Luger, et al. 2009 ND 84
Docket No.: 20080194
Filing Date: 5/14/2009
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A district court has subject matter jurisdiction over activities conducted on an Indian reservation by persons who are not members of the tribe residing on that reservation when such activities do not involve the tribe's authority to regulate or control such activities.
A district court has personal jurisdiction over a member of an Indian tribe residing on an Indian reservation other than that of his enrollment.
A district court abuses its discretion in ordering a monetary default judgment when monetary relief was not requested in the complaint.

Disciplinary Board v. Light (Consolidated w/ 20080321-20080327) 2009 ND 83
Docket No.: 20080320
Filing Date: 5/14/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred and ordered to pay costs of disciplinary proceedings.