Opinions

Matter of Edwardson (CONFIDENTIAL) 2004 ND 17
Docket No.: 20030331
Filing Date: 1/20/2004
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer Debra K. Edwardson transferred to incapacitated status.

Zuger v. State 2004 ND 16
Docket No.: 20030170
Filing Date: 1/20/2004
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: Summary judgment is appropriate if the information available to the trial court does not establish a genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.
Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of a claim on which they will bear the burden of proof at trial.
Factual assertions in a brief do not raise an issue of material fact satisfying N.D.R.Civ.P. 56(e).
The elements of an action for intentional infliction of emotional distress are extreme and outrageous conduct that is intentional or reckless and causes severe emotional distress.

Tank v. Tank 2004 ND 15
Docket No.: 20030111
Filing Date: 1/20/2004
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: On appeal, a trial court's denial of an evidentiary hearing on a motion to modify custody is reviewed de novo.
A party seeking a change of child custody is entitled to an evidentiary hearing if the party presents a prima facie case by alleging, with supporting affidavits, sufficient facts which, if proved, would support a change in custody.
Potential endangerment to a child's physical or mental health or a mature child's reasonable preference to live with one parent may be a significant change of circumstances supporting custody change.
A custodial parent's willful and consistent denial or interference with the non-custodial parent's visitation may also be a significant change warranting custody change, if the denial or interference affects the child's best interests.

Mock v. Mock 2004 ND 14
Docket No.: 20030115
Filing Date: 1/20/2004
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A party seeking a change of child custody is entitled to an evidentiary hearing if he presents a prima facie case by alleging, with supporting affidavits, sufficient facts which, if uncontradicted, would support a custody change.
Potential endangerment to a child's physical or mental health may be a significant change of circumstances supporting a modification of custody.
The district court may consider pre-divorce conduct when the facts were unknown to the court at the time of the original stipulation.

Disciplinary Board v. Wilkes 2004 ND 13
Docket No.: 20040012
Filing Date: 1/15/2004
Case Type: Discipline - Attorney - Original Proceeding
Author:

Highlight: Interim suspension of lawyer ordered.

Green v. Mid Dakota Clinic 2004 ND 12
Docket No.: 20030264
Filing Date: 1/14/2004
Case Type: Appeal - Civil - Personal Injury
Author: VandeWalle, Gerald

Highlight: Assumption of the risk is no longer an affirmative defense in North Dakota but is one part of the analysis in determining comparative fault.
Negligence and proximate cause are fact questions unless the evidence is such that reasonable minds can draw but one conclusion.

Amsbaugh v. Amsbaugh 2004 ND 11
Docket No.: 20030059
Filing Date: 1/14/2004
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: The owner of real property may testify as to the value of his land without further qualification or special knowledge.
If a property valuation is within the range of evidence, it is not clearly erroneous.
A property division need not be equal to be equitable, but a substantial disparity must be explained.
In determining an equitable allocation of repayment of debts, the trial court may consider which parties have incurred particular debts and the purposes for the debts.
Both economic and non-economic fault are proper factors for the trial court to consider in dividing marital property.
Uncontrolled drinking contributing to the breakdown of a marriage can be considered a matter of fault in determining whether a spouse is disadvantaged.

State v. Morales 2004 ND 10
Docket No.: 20030107
Filing Date: 1/14/2004
Case Type: Appeal - Criminal - Assault
Author: Kapsner, Carol

Highlight: A court does not err by not giving a jury instruction on license or privilege on a criminal trespass charge when there is no evidence to support it.
A court does not err when it does not include a jury instruction on a lesser-included offense when the evidence does not permit the jury to rationally find the defendant not guilty of the greater offense and guilty of the lesser offense.
A jury verdict of assault on a police officer will be affirmed when the evidence is viewed in the light most favorable to the verdict, no rational trier of fact could have found that the essential elements of the crime were established beyond a reasonable doubt.

Nagel v. City of Bismarck 2004 ND 9
Docket No.: 20030265
Filing Date: 1/14/2004
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Maring, Mary

Highlight: A writ of mandamus may be the proper remedy for a city police officer who claims wrongful termination in violation of city ordinances and police department general orders.
Absent an abuse of discretion, a trial court's denial of a petition for a writ of mandamus will not be overturned.
A party seeking a writ of mandamus bears the burden of demonstrating a clear legal right to the performance of the particular acts sought to be compelled by the writ.
A party seeking a writ of mandamus must have no other plain, speedy, and adequate remedy in the ordinary course of the law.
Mandamus is unavailable if an appeal is authorized from an adverse decision.

Interest of W.O. (CONFIDENTIAL) (cross-reference w/20030323 & 20030340) 2004 ND 8
Docket No.: 20030358
Filing Date: 1/14/2004
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: An appeal of a district court's amended order revoking less restrictive treatment is rendered moot once the patient is released from the hospital and is placed on an identical order for less restrictive treatment.