Opinions

Rojas v. Workforce Safety and Insurance, et al. 2005 ND 147
Docket No.: 20040352
Filing Date: 7/28/2005
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Before a claimant's continuing workers compensation disability benefits may be terminated, WSI must provide pretermination notice of the contemplated action, a summary of the evidence supporting termination, and a meaningful pretermination opportunity to respond in writing to the alleged grounds for termination.
A notice of intent to discontinue benefits and of the claimant's opportunity to respond sent to the claimant by regular mail is insufficient to guarantee due process when the presumption of receipt under N.D.C.C. 31-11-03(24) has been rebutted and it is determined the claimant never received the notice.

CybrCollect, Inc. v. ND Dept. of Financial Institutions, et al. 2005 ND 146
Docket No.: 20040214
Filing Date: 7/27/2005
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: Consumer electronic fund transactions in North Dakota are subject to the Electronic Fund Transfer Act and Regulation E, which was issued by the Federal Reserve Board to carry out the purpose of the Act.
An administrative hearing may not be held unless the parties have been served with a written specification of issues for hearing or other document indicating the issues to be considered and determined at the hearing. Basic notions of fundamental fairness dictate a person challenging an agency action must be adequately informed in advance of the questions to be addressed at the hearing so the person can be prepared to present evidence and arguments on those questions.

Estate of Richmond 2005 ND 145
Docket No.: 20040360
Filing Date: 7/25/2005
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: If the evidence presented in opposition to a motion for summary judgment is of insufficient caliber or quantity to allow a rational finder of fact to find fraud by clear and convincing evidence, there is no genuine issue of material fact.
Fraud is never presumed, even under circumstances that give rise to a suspicion of fraud.

Disciplinary Board v. Ward 2005 ND 144
Docket No.: 20050092
Filing Date: 7/25/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Maring, Mary

Highlight: Lawyer reprimanded for violation of N.D.R. Prof. Conduct 1.15(f), ordered to pay restitution to former clients, and ordered to pay costs and attorney's fees associated with the disciplinary proceeding.

City of Bismarck v. Judkins 2005 ND 143
Docket No.: 20040370
Filing Date: 7/25/2005
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: A constitutional error may be declared harmless if the court, after reviewing the entire record, is convinced that the error did not contribute to the verdict.

Bladow v. Bladow 2005 ND 142
Docket No.: 20040315
Filing Date: 7/25/2005
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Issues that are not raised in pleadings may be tried by the express or implied consent of the parties.
A motion to modify child custody may be made within two years after entry of an order establishing custody when the court finds a persistent and willful denial or interference with visitation.
A party seeking modification of a custody order must establish a prima facie case justifying modification in order to receive an evidentiary hearing.
Split custody of siblings is not preferred.
A trial court has discretion in awarding attorney fees in a domestic relations case.
A trial court errs as a matter of law when it fails to follow the child support guidelines.

Case Credit Corp. v. Oppegard's Inc. 2005 ND 141
Docket No.: 20040369
Filing Date: 7/25/2005
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: Jury instructions do not need to include a definition of a commonly understood word when such a definition has not been requested. Giving a definition of a commonly understood word is a matter of the trial court's discretion.
A jury instruction on issues not raised at trial is erroneous but only constitutes reversible error if the instruction was intended to mislead the jury. A special damages provision controls over a general damages provision.

State v. Ressler 2005 ND 140
Docket No.: 20040327
Filing Date: 7/25/2005
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Reasonable suspicion does not permit law enforcement authorities to transport a seized package from the place where suspicion arose to a law enforcement center for further investigation.
Evidence derived based on an illegal seizure must be suppressed as fruit of the poisonous tree.

Simburger v. Simburger 2005 ND 139
Docket No.: 20050032
Filing Date: 7/25/2005
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: Once an initial custody decision has been made, visitation is governed by N.D.C.C. 14-05-22(2).
A party moving to modify visitation bears the burden of establishing that a material change in circumstances has occurred since the prior visitation order and that it is in the best interest of the child to modify the order.

Interest of B.J.K. (Confidential) 2005 ND 138
Docket No.: 20050025
Filing Date: 7/25/2005
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Sandstrom, Dale

Highlight: A juvenile court's finding of deprivation will not be set aside unless it is clearly erroneous.
In determining whether the causes and conditions of deprivation will continue or will not be remedied, there must be prognostic evidence forming the basis for reasonable prediction of continued or future deprivation.