Opinions

Interest of K.G. (Confidential) 2005 ND 156
Docket No.: 20050266
Filing Date: 8/31/2005
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: A district court's finding, that no less restrictive treatment programs other than hospitalization are appropriate, will not be reversed unless it is clearly erroneous.

Amerada Hess Corp., et al. v. Fong 2005 ND 155
Docket No.: 20040378
Filing Date: 8/31/2005
Case Type: Appeal - Civil - Tax Realted
Author: Maring, Mary

Highlight: Gross-up amounts are not "foreign dividends" subject to partial exclusion under state tax law.
The rule of strict construction of ambiguous tax statutes in favor of the taxpayer is a rule of last resort when other means of ascertaining the legislature's intentions have failed.
An administrative agency need not use the rulemaking process to collect an erroneous interpretation of a statute.
While there may be a public desire to avoid double taxation as a matter of public policy, there is no constitutional prohibition against double taxation.

Frisk v. Frisk 2005 ND 154
Docket No.: 20050051
Filing Date: 8/23/2005
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: A domestic violence protection order, originally entered under a stipulation or agreement specifically declining to issue findings regarding domestic violence, cannot be extended absent a threshold finding of actual or imminent domestic violence.

Disciplinary Board v. Hoffman 2005 ND 153
Docket No.: 20040379
Filing Date: 8/23/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: An isolated instance of ordinary negligence does not constitute lack of competence or diligence under the rules of professional conduct.

State v. Parisien (Consolidated w/20040349 & 20040350) 2005 ND 152
Docket No.: 20040348
Filing Date: 8/18/2005
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: All communications with jurors, after a case has been submitted to them, must be made in open court and in the presence of the defendant.
The mere length of time a jury is kept in deliberations, in itself, does not establish that a verdict was coerced.
The giving of an Allen-type charge after the trial court has been informed of a deadlocked jury's numerical split is a factor to consider in assessing whether the totality of the circumstances indicate a coerced verdict.

Miller, et al. v. Diamond Resources, Inc. 2005 ND 150
Docket No.: 20040274
Filing Date: 8/18/2005
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Sandstrom, Dale

Highlight: A proximate cause is a cause that, as a natural and continuous sequence unbroken by any controlling intervening cause, produces the injury, and without it the injury would not have occurred.
The intervening negligence of another cannot be a superseding cause that extinguishes a wrong-doer's liability if that negligence was a foreseeable consequence of the situation created by the wrong-doer.

Heart River Partners, et al. v. Goetzfried, et al. 2005 ND 149
Docket No.: 20050003
Filing Date: 8/18/2005
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: Parol evidence is admissible in an action to reform a written deed when, through fraud or mutual mistake of the parties, or a mistake by one party which the other at the time knew or suspected, the deed does not truly express the parties' intention.

Disciplinary Board v. Korsmo 2005 ND 148
Docket No.: 20050251
Filing Date: 8/3/2005
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

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.