Opinions

Gustafson v. ND Department of Human Services 2006 ND 75
Docket No.: 20050390
Filing Date: 4/19/2006
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: Under the 2003 version of the statute, for Medicaid eligibility, the purchase of an annuity is considered an uncompensated assignment or transfer of assets if it is not expected to return the full principal and interest within the purchaser's life expectancy.
Once a Medicaid applicant supplies a physician's estimate of reasonable life expectancy, the burden shifts to the Department of Human Services to accept or determine a reasonable life expectancy.

State v. Davenport (cross-ref. w/2000148) 2006 ND 74
Docket No.: 20050274
Filing Date: 4/19/2006
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: An order revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Edin v. Disciplinary Board 2006 ND 73
Docket No.: 20060102
Filing Date: 4/13/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reinstatement ordered.

Hopfauf, et al. v. Hieb, et al. 2006 ND 72
Docket No.: 20050203
Filing Date: 4/6/2006
Case Type: Appeal - Civil - Malpractice
Author: Crothers, Daniel John

Highlight: Summary judgment is properly granted if the information available to the trial court precluded the existence of a genuine issue of material fact, entitling the moving party to summary judgment as a matter of law.
A district court's denial of a request for additional time for discovery under N.D.R.Civ.P. 56(f) is not overturned on appeal absent an abuse of discretion.
An element of negligent failure to obtain informed consent, as in any negligence action, is the existence and extent of a duty. A duty to disclose can only arise if the physician knew or should have known of the risks to be disclosed.

Bernabucci, et al. v. Huber, et al. 2006 ND 71
Docket No.: 20050275
Filing Date: 4/3/2006
Case Type: Appeal - Civil - Corporations
Author: VandeWalle, Gerald

Highlight: If extrinsic evidence is conclusive and undisputed, the determination of the meaning of a contract is a function for the court to resolve as a matter of law.
A court does not abuse its discretion when it denies a requested amendment to a complaint which would be futile.

Thompson v. Workforce Safety and Insurance, et al. 2006 ND 69
Docket No.: 20050392
Filing Date: 3/31/2006
Case Type: Appeal - Administrative - Workers Compensation
Author: Crothers, Daniel John

Highlight: When reviewing the decision of an administrative agency, courts do not make independent findings of fact or substitute their judgment for that of the agency, but determine whether a reasoning mind could reasonably have determined that the factual conclusions reached were supported by the weight of the record.
If the decision of the administrative agency was consistent with the opinion of the sole testifying physician, the agency's decision was supported by the weight of the record.

Victor v. Workforce Safety & Insurance, et al. (Consolidated w/20050400) 2006 ND 68
Docket No.: 20050384
Filing Date: 3/29/2006
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Workforce Safety and Insurance has discretion in determining what rehabilitative services are reasonably necessary and a reasoning mind reasonably could have decided that a $10,000 animal hoist was not a reasonably necessary rehabilitative service for a worker employed at a dog grooming business.

Manning v. Manning 2006 ND 67
Docket No.: 20050065
Filing Date: 3/29/2006
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Nesvig v. Nesvig (cross-ref. w/20030041) 2006 ND 66
Docket No.: 20050125
Filing Date: 3/29/2006
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: In deciding whether to compel testimony of an unretained expert, the court should consider: whether the expert is being called to testify about facts of the case or to give opinion testimony; the difference between testifying to a previously formed or expressed opinion and forming a new one; whether the witness is a unique expert; the likelihood a comparable witness will willingly testify; and the degree the witness is oppressed by having to continually testify.
The district court does not abuse its discretion by failing to sequester an expert witness from observing trial testimony where the expert's presence is essential to presentation of the party's cause and no prejudice results.

Rothberg v. Rothberg 2006 ND 65
Docket No.: 20050198
Filing Date: 3/29/2006
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: An order denying a motion to modify child support or spousal support that is intended to be the final order of the court is appealable.
Conclusory, general findings of fact do not comply with N.D.R.Civ.P. 52(a), and the trial court must specifically state the subordinate facts upon which its ultimate factual conclusions rest.
In deciding whether to award attorney fees in a divorce proceeding, the court must consider the parties' financial needs and ability to pay.