Opinions

Disciplinary Board v. Bullis 2006 ND 228
Docket No.: 20060132
Filing Date: 11/13/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Attorney suspended from practice of law for 90 days, ordered to complete six hours of non-self-study continuing legal education courses on conflicts of interest within the next two years in addition to the mandatory CLE requirements, and ordered to pay costs and expenses of proceedings.
When a lawyer has conflicting responsibilities as the lawyer for various clients, those loyalties owed to the client are impaired.
An attorney representing multiple clients cannot by subjective or secret analysis eliminate one as a current client and decide that he is only representing another current client on a particular transaction.
Business transactions between an attorney and client are fraught with pitfalls and traps, and an attorney, with his superior knowledge and education, engages in business transactions with a client at the attorney's peril and is held to the highest standards.

State v. Buchholz (Consol. w/20060061) (Cross-ref. w/20040118) 2006 ND 227
Docket No.: 20060044
Filing Date: 11/7/2007
Case Type: Appeal - Criminal - Other
Author: VandeWalle, Gerald

Highlight: A mistake of law defense generally is not an available defense for strict liability offenses.
A sentence may be illegal if it is contrary to statute, fails to comply with a promise of a plea bargain, or is inconsistent with the oral pronouncement of the sentence.

Unterseher v. Ziegler 2006 ND 226
Docket No.: 20060181
Filing Date: 11/7/2006
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: Suspension of driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. Just 2006 ND 225
Docket No.: 20060146
Filing Date: 11/7/2006
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: An information or complaint must contain a plain, concise, and definite written statement of the essential facts and elements of the offense.
The omission of statutory language from an information or complaint may be harmless if the defendant was not substantially prejudiced and the document is sufficiently specific to enable the defendant to prepare a defense.

Riemers v. City of Grand Forks 2006 ND 224
Docket No.: 20060057
Filing Date: 11/7/2006
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A party opposing summary judgment may not merely rely upon the pleadings or unsupported, conclusory allegations.
A party waives an issue by not providing supporting arguments, reasoning, or citations to relevant legal authority.
An Attorney General's opinion is "highly persuasive" if it is consistent with the district court's independent analysis of the issues presented.
Under the open records law, a public entity need not disclose a record that is not in its possession or custody at the time of the request.
The "criminal intelligence and investigative information exception," which exempts active criminal investigation material from disclosure under the open records law, is temporary in nature and terminates upon the completion of the criminal prosecution.

Sambursky v. State (Consol. w/20050331-20050335) 2006 ND 223
Docket No.: 20050330
Filing Date: 11/7/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: A district court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
If the petitioner raises an issue of material fact in resisting summary dismissal of an application for post-conviction relief, the petitioner is entitled to an evidentiary hearing on the matter.
In a post-conviction relief proceeding alleging the ineffective assistance of counsel with respect to a guilty plea, counsel is ineffective if a claimant can show that counsel's performance fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's errors, the petitioner would not have pleaded guilty and would have insisted on going to trial.

State v. Davis 2006 ND 222
Docket No.: 20060033
Filing Date: 11/7/2006
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Convictions for carrying a concealed firearm and possessing a short-barreled shotgun are summarily affirmed under N.D.R.App.P. 35.1(a)(3).

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.