Opinions

Bjerklie v. Workforce Safety and Insurance 2005 ND 178
Docket No.: 20050111
Filing Date: 10/18/2005
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: In an administrative appeal, only issues properly raised before the agency will be reviewed on appeal.
The Administrative Agencies Practice Act requires that alleged errors be specifically enumerated for the district court.
An administrative agency's decision will be summarily affirmed if the appellant fails to specifically identify any error with particularity.
A workers compensation claimant has good cause for not attending an independent medical examination if the claimant has a reason that would cause a reasonably prudent person to refuse to attend under the same or similar circumstances.
When a workers compensation claimant who has a reasonable opportunity to inform WSI that she cannot attend an independent medical examination fails to do so, the claimant's responsibility to cooperate with WSI has not been fulfilled, the claimant has not communicated properly with WSI, the claimant does not have good cause to not attend the IME, and the claimant has failed to comply with rehabilitation requirements.

Interest of L.D.M. (CONFIDENTIAL) 2005 ND 177
Docket No.: 20040319
Filing Date: 10/18/2005
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Maring, Mary

Highlight: The requirement that two experts conclude statutory conditions have been met to civilly commit a person as a dangerous sexual individual can be met by testimony of two experts employed by the same employer who have conferred during the evaluation process, providing each arrives at a separately held conclusion.
In considering the totality of the evidence, the court can rely on the expert opinion of witnesses called by the State and by the defendant in deciding whether the statutory conditions are met for civil commitment, under N.D.C.C. ch. 25-03.3, of a person as a dangerous sexual individual.

Clark v. Clark 2005 ND 176
Docket No.: 20050101
Filing Date: 10/18/2005
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: When the district court provides no factual findings or explanation for the basis of its custody decision, remand is necessary.
A district court must make factual findings regarding spousal support.
An award of grandparent visitation or custody is clearly erroneous if exceptional circumstances do not exist, the best interests of the child were not examined, and the grandparent did not petition the court for visitation or custody.
A successor judge taking over a case must either make a N.D.R.Civ.P. 63 certification before resuming proceedings or order a new trial.

Seehafer v. Seehafer 2005 ND 175
Docket No.: 20050069
Filing Date: 10/18/2005
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: A probate homestead may not be claimed in land when the claimant held no interest and her deceased husband held only a joint tenancy.

Ruud v. Frandson, et al. 2005 ND 174
Docket No.: 20050049
Filing Date: 10/18/2005
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: A trial court's resolution of an ambiguity in a will is a finding of fact that will not be set aside unless it is clearly erroneous.
A competent testator may dispose of property as the testator wishes without regard to the desires of beneficiaries, juries, or courts as long as the terms of the will are not prohibited by law or opposed to public policy.
An estate may be granted on a condition, upon the performance or breach of which the estate shall commence, be enlarged, or be defeated.
When there is a testamentary gift upon a condition that is accepted by the beneficiary, the beneficiary must perform the condition, however burdensome.
Under N.D.R.Civ.P. 15(b), a pleading may be impliedly amended by the introduction of evidence which varies the theory of the case and which is not objected to on the grounds it is not within the issues in the pleadings.
Amendment of the pleadings by implication under N.D.R.Civ.P. 15(b) arises only when the evidence introduced is not relevant to any issue pleaded in the case.

Farmers Union Mutual Ins. Co. v. Decker, et al. 2005 ND 173
Docket No.: 20040371
Filing Date: 10/18/2005
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: The evidence must show the claim is within an exception to the exclusion in order to benefit from coverage.
An insurer's obligation to defend an insured and pay the resulting attorney fees arises when the complaint alleges facts that create a possibility of coverage under the policy.

State v. Bartelson 2005 ND 172
Docket No.: 20040266
Filing Date: 10/18/2005
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: An officer's subjective intent is irrelevant on the question of probable cause if a driver has committed a traffic violation.
An officer's probable cause does not disintegrate simply because another police officer had previously stopped the same vehicle for the same violation.

Hoffman v. Disciplinary Board 2005 ND 171
Docket No.: 20050162
Filing Date: 10/18/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A petitioner has the burden of establishing qualifications for reinstatement to the bar by clear and convincing evidence.
A lawyer's speech outside of a courtroom setting may be limited more than that of a lay person.

City of Bismarck v. Witzke 2005 ND 170
Docket No.: 20050169
Filing Date: 10/18/2005
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Conviction of attempted criminal mischief is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Acuity Ins. Co. v. Meridian Ins. Co. 2005 ND 169
Docket No.: 20050093
Filing Date: 10/18/2005
Case Type: Appeal - Civil - Insurance
Author: Per Curiam

Highlight: Summary judgment in an insurance contribution action is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (6).