Opinions

Jacob, et al. v. Nodak Mutual Ins. Co., et al. 2005 ND 56
Docket No.: 20040197
Filing Date: 3/8/2005
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Kapsner, Carol

Highlight: Age alone, without other evidence, is insufficient to survive a motion for summary judgment in an age discrimination case.
Section 34-01-20, N.D.C.C., prohibits an employer from discharging an employee for reporting illegalities and requires a report to be made for the purpose of blowing the whistle to expose an illegality.
Section 14-02.4-03, N.D.C.C., does not prohibit a retaliatory discharge for participating in an internal employee investigation.

Simpson, et al. v. Chicago Pneumatic Tool Co., et al. 2005 ND 55
Docket No.: 20040133
Filing Date: 3/8/2005
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Neumann, William

Highlight: For purposes of res judicata and collateral estoppel, parties and their privies are barred by a former judgment.
Res judicata and collateral estoppel apply when subsequent claims are based on the same facts and events but different legal theories are pled.
A district court's determination regarding a request for sanctions under N.D.R.Civ.P. 11 will not be reversed unless the court abused its discretion.
Monetary sanctions may not be awarded against a represented party for a violation of N.D.R.Civ.P. 11(b)(2).

Interest of R.F. (CONFIDENTIAL) 2005 ND 54
Docket No.: 20050053
Filing Date: 3/4/2005
Case Type: Appeal - Civil - Mental Health
Author: VandeWalle, Gerald

Highlight: An individual found to be a person requiring mental-health treatment has the right to the least restrictive conditions necessary to achieve the purposes of treatment.
Orders for in-patient hospitalization and treatment are reviewed under the clearly erroneous standard. A district court's finding that alternative treatment is inadequate or that hospitalization is the least restrictive alternative will not be set aside unless clearly erroneous.
An order for in-patient hospitalization is not clearly erroneous where a doctor testifies that a mentally ill individual's dementia, which has yet to be fully diagnosed or treated, likely triggered a prescription-drug overdose, and asserts that the hospital's structure and supervision are temporarily needed to help avoid future self-medication accidents.

Frieze v. Frieze 2005 ND 53
Docket No.: 20040103
Filing Date: 3/4/2005
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: Section 14-09-06.6(5), N.D.C.C., limits the grounds upon which a court may grant a motion to change custody which is brought within two years following entry of the order establishing custody, and includes the persistent and willful denial of interference with visitation or a present environment which may endanger or impair the child's physical or emotional health or development.
When a stepparent's career takes him or her out of state to secure a job, allowing the spouse and stepchildren to relocate to that place is crucially important to maintaining family continuity and stability.
When the relevant factors weigh in favor of the custodial parent's request to relocate the children, the trial court's denial of the motion constitutes reversible error.

Thomas v. Workforce Safety and Insurance, et al. 2005 ND 52
Docket No.: 20040311
Filing Date: 3/4/2005
Case Type: Appeal - Administrative - Workers Compensation
Author: Neumann, William

Highlight: A willful failure to give a maximum consistent effort in a functional capacity assessment can constitute noncompliance with vocational rehabilitation.
Workforce Safety and Insurance must adequately explain the reasons for disregarding medical evidence favorable to a claimant.

Larsen v. ND Dept. of Transportation 2005 ND 51
Docket No.: 20040158
Filing Date: 3/4/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Neumann, William

Highlight: In interpreting a statute, a court may not disregard the letter of the statute under the pretext of pursuing its spirit, and may not add words to the statute.

Roberts v. ND Department of Human Services 2005 ND 50
Docket No.: 20040277
Filing Date: 3/4/2005
Case Type: Appeal - Civil - Administrative Proceeding
Author: Neumann, William

Highlight: An applicant for medicaid benefits has the burden of establishing eligibility for benefits and providing information necessary to establish eligibility.
Transactions between a trustee and a beneficiary by which the trustee obtains any advantage from the beneficiary are presumed to be entered into without sufficient consideration.

Kaiser v. State 2005 ND 49
Docket No.: 20040135
Filing Date: 3/4/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: If, in responding to an application for post-conviction relief, the State moves for dismissal and presents matters outside the pleading and the court does not exclude them, the opposing party shall have 30 days after service of the State's brief within which to serve and file an answer brief and supporting papers.

Gamboa v. State 2005 ND 48
Docket No.: 20040128
Filing Date: 3/4/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Neumann, William

Highlight: In post-conviction relief proceedings, it is not an abuse of discretion to deny default judgment when a petitioner cannot show he suffered any prejudice from the State's untimely response.
Post-conviction relief applications seeking withdrawal of a guilty plea must be made in a timely manner in accordance with Rule 32, N.D.R.Crim.P.

Sweeney v. Sweeney (Cross-Ref. w/20010129) 2005 ND 47
Docket No.: 20040142
Filing Date: 3/4/2005
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: In divorce proceedings, a trial court must award reasonable attorney fees and court costs to one parent if it finds the other parent has made an allegation of harm to the child that is false and not made in good faith or if the court finds there has been willful and persistent denial of the noncustodial parent's visitation rights by the custodial parent.
The court cannot, to avoid imposing a significant burden on the offending party or to avoid disrupting the parties' improved relationship, ignore its mandate to award reasonable attorney fees and costs when there has been willful and persistent denial of visitation rights.