Opinions

Laib v. State 2005 ND 187
Docket No.: 20050108
Filing Date: 11/9/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: A defendant who has inexcusably failed to raise an issue on a prior direct appeal may not raise the issue in a subsequent application for post-conviction relief.
A defendant claiming ineffective assistance of counsel must prove that counsel's representation fell below an objective standard of reasonableness and that the defendant was thereby prejudiced.
To demonstrate prejudice from ineffective representation, the defendant must establish a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.

Hoff v. Fitterer 2005 ND 186
Docket No.: 20050088
Filing Date: 11/9/2005
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: Under the child support guidelines, in cases of underemployment an obligor's ability to pay child support is not determined solely upon actual income, but also takes into account the obligor's earning capacity.
In cases of underemployment, the child support guideline subsection resulting in the greatest imputed income must be used.

Interest of E.I., Jr. (Confidential) 2005 ND 185
Docket No.: 20050024
Filing Date: 11/9/2005
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: A judgment terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Mohamed 2005 ND 184
Docket No.: 20050156
Filing Date: 11/9/2005
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: A criminal judgment following a conviction for aggravated assault is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Moore 2005 ND 183
Docket No.: 20050144
Filing Date: 11/9/2005
Case Type: Appeal - Criminal - Misc. Felony
Author:

Highlight: Trial court's denial of petitioner's motion to withdraw his guilty plea is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Interest of L.J. (CONFIDENTIAL) 2005 ND 182
Docket No.: 20050078
Filing Date: 11/9/2005
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

Interest of C.R. and S.R. (CONFIDENTIAL) 2005 ND 181
Docket No.: 20050062
Filing Date: 11/9/2005
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: An order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

L.C.V. v. D.E.G. (CONFIDENTIAL) 2005 ND 180
Docket No.: 20050008
Filing Date: 10/26/2005
Case Type: Appeal - Civil - Paternity
Author: Crothers, Daniel John

Highlight: The trial court cannot delegate to a custody investigator its authority to award custody to the parent who will promote the best interest and welfare of the child, and it is within the trial court's discretion to assign the weight given to a custody investigator's recommendations.
The trial court's choice for custody between two fit parents is a difficult one, and the appellate court will not retry the case or substitute its judgment for that of the trial court when the decision is supported by the evidence.
Attorney fees are not allowed to a successful litigant in a custody and support proceeding unless expressly authorized by statute or agreement.

Ernst, et al. v. Acuity 2005 ND 179
Docket No.: 20050128
Filing Date: 10/24/2005
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: Business risk exclusions in a contractor's comprehensive general liability policy are designed to exclude coverage for defective workmanship by the insured causing damage to the project itself.

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.