Opinions

Rojas v. Workforce Safety and Ins., et al. (Cross-ref. w/20040352) 2006 ND 221
Docket No.: 20060087
Filing Date: 10/23/2006
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: An injured employee is entitled to an award of reasonable attorney's fees when Workforce Safety and Insurance acts without substantial justification in reducing or denying the employee's benefits.

Hasper v. Center Mutual Ins. Co. 2006 ND 220
Docket No.: 20050316
Filing Date: 10/23/2006
Case Type: Appeal - Civil - Insurance
Author: Kapsner, Carol

Highlight: An insurer which seeks to deny underinsured motorist coverage based upon the insured's failure to notify the insurer of a proposed settlement with the tortfeasor must demonstrate that it suffered actual prejudice resulting from the lack of notice.
The determination whether an insurer has been prejudiced by an unauthorized settlement is a question of fact that is generally inappropriate for summary judgment.
In determining whether an insurer has suffered actual prejudice from an unauthorized settlement, relevant factors include the amount of the tortfeasor's assets, the likelihood of recovery via subrogation, the extent of the insured's damages, and the expenses and risks of litigating the insured's cause of action.

Guardianship/Conservatorship of Thomas 2006 ND 219
Docket No.: 20050370
Filing Date: 10/20/2006
Case Type: Appeal - Civil - Guardian/Conservator
Author: Maring, Mary

Highlight: The Supreme Court applies the abuse of discretion standard when reviewing a trial court's selection of a guardian and conservator.
Concern over the appearance of undue influence can establish "good cause," justifying the appointment of a neutral and detached person as guardian and conservator over others with higher priority who have a financial interest in the protected person's assets.
The Supreme Court applies the abuse of discretion standard of review to the district court's ultimate decision whether to approve payment of a claim against a protected person's estate and the clearly erroneous standard of review to the court's underlying findings of fact.

Interest of B.L.S. (Confidential) 2006 ND 218
Docket No.: 20060234
Filing Date: 10/20/2006
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: After a request to treat with medication has been made, an independent physician or psychiatrist must certify that the proposed treatment is clinically appropriate and necessary, that the patient was offered the treatment and refused it, that the prescribed medication is the least restrictive form necessary to meet the patient's needs, and that the benefits of treatment outweigh the known risks.
Mental health respondents are entitled to adequate notice and the opportunity to prepare to address the involuntary treatment with medication.
A district court cannot order medications which have not been noticed in the request to treat with medication and have not been certified as clinically appropriate and necessary by a second physician or psychiatrist.
The involuntary treatment with medication is not limited to psychotropic medications used to treat mental illness.

Hild, et al. v. Johnson, et al. 2006 ND 217
Docket No.: 20060056
Filing Date: 10/20/2006
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: An undivided mineral interest conveyed or reserved in a deed may be expressed as a percentage, as a fraction, or as a specified number of mineral acres.
A grantee of a specified number of mineral acres in a described tract of land acquires that number of acres, and does not gain or lose if the tract contains more or less acreage than contemplated by the parties.
A grantee of an undivided mineral interest expressed as a percentage or fraction acquires that quantum in the entire described tract of land, and may gain or lose if the tract contains more or less acreage than contemplated by the parties.
When there is a discrepancy in a deed between the specific description of the property conveyed and an expression of the quantity conveyed, the specific description is controlling.
Quantity is the least certain of all elements of description in a deed, and all other elements of description must be ambiguous and uncertain before a recital of quantity will be considered.

Rummer v. State (Cross-reference w/19950324) 2006 ND 216
Docket No.: 20050341
Filing Date: 10/17/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: The petitioner has the burden of establishing grounds for post-conviction relief.
In order to prevail on a post-conviction claim for ineffective assistance of counsel, the petitioner has the heavy burden of proving: (1) counsel's representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel's deficient performance.
To establish a Brady violation, the defendant must prove: (1) the government possessed evidence favorable to the defendant; (2) the defendant did not possess the evidence and could not have obtained it with reasonable diligence; (3) the prosecution suppressed the evidence; and (4) a reasonable probability exists that the outcome of the proceedings would have been different if the evidence had been disclosed.
A foreign-national criminal defendant may waive any right to consular notification by failing to timely raise the issue.

Livinggood v. Balsdon 2006 ND 215
Docket No.: 20060130
Filing Date: 10/17/2006
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: On remand, a district court may, unless otherwise specified, make its decision on the basis of the evidence already before it or may take additional evidence. The decision on taking additional evidence will be reversed only if the district court abuses its discretion.
Forcible ejectment or exclusion from real property is a conclusion of law fully reviewable on appeal.
Forcible ejectment from real property does not require the actual application of physical force; rather, it is enough if it is present and threatened, and is justly to be feared. This standard requires only that the plaintiff had reason to believe that he would be put out by the application of physical force if he did not obey.
The appropriate standard of review in an appeal challenging a district court's award of damages in a bench trial is whether the district court's findings of fact on damages are clearly erroneous.
A district court must award treble damages if it concludes that one person forcibly ejected or excluded another from real property.

Eichhorn v. The Waldo Township Bd. of Supervisors, et al. 2006 ND 214
Docket No.: 20050295
Filing Date: 10/17/2006
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Sandstrom, Dale

Highlight: Intervention is appropriate when the intervenor claims an interest relating to the property or transaction that is the subject of the action and that the disposition of the action may as a practical matter impair or impede the intervenor's ability to protect that interest, unless the interest is adequately represented by existing parties.
A party seeking a writ of mandamus must show that there is a "clear legal right" to performance of the particular act sought to be compelled by the writ and that there is no other plain, speedy, and adequate remedy in the ordinary course of law.
North Dakota statutes envision cooperation between townships and water resource district boards.

Witzke v. Gonzales 2006 ND 213
Docket No.: 20060155
Filing Date: 10/17/2006
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: A civil action is commenced by the service of a summons.
Absent personal jurisdiction, the court is powerless to do anything beyond dismissing without prejudice.

State v. Ebel (Consolidated w/20050441-20050443) 2006 ND 212
Docket No.: 20050440
Filing Date: 10/17/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: The Court looks at the "totality of the circumstances" on appeal, giving deference to the district court's findings, to determine whether a search warrant was supported by probable cause.
An evidentiary hearing on whether false statements were provided to support the issuance of a search warrant is only required where: (1) a defendant makes a substantial preliminary showing, accompanied by an offer of proof, that false statements were made in support of a search warrant, either knowingly and intentionally or with reckless disregard for the truth, and (2) the allegedly false statements are necessary to a finding of probable cause.