Opinions

Disciplinary Board v. McKechnie (Cross-reference w/ 20020199) 2003 ND 170
Docket No.: 20030153
Filing Date: 11/13/2003
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: An attorney is appropriately suspended from the practice of law when this Court finds clear and convincing evidence of an ethical violation.
An attorney's disciplinary record is properly considered as an aggravating factor when it has been determined an attorney violated an ethical duty.

Akerlind v. Buck, et al. 2003 ND 169
Docket No.: 20030139
Filing Date: 11/13/2003
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: The credibility of witnesses, including expert witnesses, and the weight to be given their testimony, are questions for the trier of fact.
A partnership agreement controls whether partners are entitled to compensation for services provided to the partnership.
A partner breaches a fiduciary duty if the partner fails to keep fiduciary property separate and distinct and uses partnership property for the partner's personal benefit.
Whether a person has breached a fiduciary duty is a finding of fact.

State v. $17,515.00 in Cash Money, et al. 2003 ND 168
Docket No.: 20030008
Filing Date: 11/13/2003
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: There is no constitutional right to a jury trial in a drug-related forfeiture proceeding.
In a contested drug-related forfeiture proceeding, the State must first show probable cause to believe the property is forfeitable, and then the burden of proof shifts to the claimant to prove by a preponderance of the evidence that the property is not forfeitable.

Reineke v. Reineke 2003 ND 167
Docket No.: 20030014
Filing Date: 11/13/2003
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: The Ruff-Fischer guidelines apply to both property division and spousal support, which ordinarily must be considered together.
Both economic and noneconomic fault are proper factors for the trial court to consider in dividing marital property.
The appointment of a custody investigator or a guardian ad litem is committed to the trial court's discretion.

Damron v. Damron 2003 ND 166
Docket No.: 20030135
Filing Date: 11/13/2003
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: A custodial parent's homosexual household is not grounds for modifying custody within two years of a prior custody order in the absence of evidence the children's environment endangers or potentially endangers the children's physical or emotional health or impairs the children's emotional development.

Klingenstein v. Klingenstein 2003 ND 165
Docket No.: 20030116
Filing Date: 11/13/2003
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: A judgment awarding spousal support and dividing marital property is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Wangler v. Lerol, et al. 2003 ND 164
Docket No.: 20030066
Filing Date: 11/13/2003
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: Waiver and estoppel will not operate to create an insurance contract that never existed.
A Miller-Shugart agreement, consisting of a stipulated confessed judgment against an insured, a covenant not to execute on the judgment, and an assignment of claims, does not eliminate the insured's damages and make the assignment of claims ineffective.
A plaintiff need not replead previously dismissed claims in an amended complaint to preserve the right to appeal the dismissal.

Judicial Vacancy in District Judgeship No. 2, South Central District 2003 ND 163
Docket No.: 20030290
Filing Date: 10/29/2003
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship ordered retained and filled.

Interest of R.F. (CONFIDENTIAL) 2003 ND 162
Docket No.: 20030288
Filing Date: 10/23/2003
Case Type: Appeal - Civil - Mental Health
Author: Sandstrom, Dale

Highlight: At a mental health hearing on a petition for discharge, the burden of proof is the same as at an involuntary treatment hearing.
The petitioner must prove by clear and convincing evidence that the respondent is a person requiring mental health treatment.
A person requiring treatment has the right to the least restrictive means of treatment.

Disciplinary Board v. Hoffman (Consolidated w/ 20030142) 2003 ND 161
Docket No.: 20030141
Filing Date: 10/23/2003
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: An attorney is appropriately suspended from the practice of law for one year when the hearing panel has found clear and convincing evidence of professional conduct violations.
Prior discipline is relevant as an aggravating factor when the prior incidents establish a pattern of misconduct.