Opinions

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).

Disciplinary Board v. Wilkes 2005 ND 168
Docket No.: 20050297
Filing Date: 10/4/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred for felony convictions.

State v. Frankfurth 2005 ND 167
Docket No.: 20050112
Filing Date: 9/27/2005
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: A criminal information must contain all essential elements of the offense in order to charge that offense.
A motion to arrest the judgment may be made after trial when the information fails to charge a crime.
A defective information failing to charge a crime cannot be "cured" through proper jury instruction or other means short of amendment.

Sayler v. State 2005 ND 166
Docket No.: 20050048
Filing Date: 9/27/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: Ineffective assistance of counsel claims require a defendant to show that counsel's representation was objectively unreasonable and that the defendant was prejudiced by counsel's deficient performance.
A defendant must offer evidence of how any additional witnesses would have aided the defense's claim.