Opinions

Interest of B.N. & K.K. (CONSOLIDATED W/20020281) (CONFIDENTIAL) 2003 ND 68
Docket No.: 20020256
Filing Date: 5/6/2003
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: The probability of serious mental and emotional harm to a child may be established by prognostic evidence that a parent's current inability to properly care for the child will continue long enough to render improbable the successful assimilation of the child into a family if the parent's rights are not terminated.

Nelsen v. N.D. Dept. of Transportation, et al. 2003 ND 67
Docket No.: 20020334
Filing Date: 5/6/2003
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Per Curiam

Highlight: A judgment affirming a Central Personnel Division order upholding a Department of Transportation decision to terminate an employee is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. Norman 2003 ND 66
Docket No.: 20020172
Filing Date: 4/24/2003
Case Type: Appeal - Criminal - Other
Author: VandeWalle, Gerald

Highlight: The DNA database sampling requirements in N.D.C.C. 31-13-03 apply (1) to persons convicted after July 31, 2001, of a listed felony offense; and (2) to persons incarcerated after July 31, 2001, as a result of a conviction for one of the listed offenses.
Only issues which have been thoroughly briefed and argued will be addressed on appeal.
Obtaining a DNA sample under N.D.C.C. 31-13-03 does not violate a person's Fifth Amendment right against self-incrimination.

Spagnolia v. Monasky, et al. 2003 ND 65
Docket No.: 20020203
Filing Date: 4/22/2003
Case Type: Appeal - Civil - Contracts
Author: Neumann, William

Highlight: A contract is ambiguous when rational arguments can be made for different interpretations.
The intention of the parties to a contract must be gathered from the entire instrument and not from isolated clauses.
An implied trust, whether resulting or constructive, must be established by clear and convincing evidence.
An appellate court is not obligated to engage in unassisted searches of the record for evidence to support a litigant's position.
An appealing party has the burden of establishing not only that the trial court erred but that such error was highly prejudicial to his cause.

Koapke v. Herfendal, et al. 2003 ND 64
Docket No.: 20020177
Filing Date: 4/17/2003
Case Type: Appeal - Civil - Malpractice
Author: Sandstrom, Dale

Highlight: A referring physician does not have a duty to obtain a patient's informed consent unless the referring physician formally prescribed or performed the procedure.
Retaining a "degree of participation" in the treatment plan associated with a surgery is not enough to create liability on the part of the referring physician.

Bachmeier v. Workers Comp. et al. 2003 ND 63
Docket No.: 20020270
Filing Date: 4/17/2003
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: A claimant who files a reapplication seeking a resumption of discontinued disability benefits must prove an actual wage loss caused by a significant change in the compensable medical condition.
A claimant who was not working and had not sought employment before or after a change in his compensable medical condition did not incur an actual wage loss.

Henry v. Securities Commissioner (Consolidated w/20020156 & 20020157) 2003 ND 62
Docket No.: 20020155
Filing Date: 4/15/2003
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: An order of the Securities Commissioner denying a motion to dismiss a cease and desist order is not a final order under the Administrative Agencies Practice Act and is not appealable.

Lanners, et al. v. Johnson, et al. 2003 ND 61
Docket No.: 20020255
Filing Date: 4/15/2003
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: When a plaintiff presents a prima facie case for child custody modification, an evidentiary hearing must be held.

Argabright v. Rodgers, et al. 2003 ND 59
Docket No.: 20020246
Filing Date: 4/15/2003
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: An ostensible agency rests upon conduct or communications of the principal which, reasonably interpreted, causes a third person to believe the agent has authority to act for and on behalf of the principal.
If an agency relationship is denied, the party alleging agency must establish it by clear and convincing evidence.

Cannaday v. Cannaday 2003 ND 58
Docket No.: 20020185
Filing Date: 4/15/2003
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: The rules for the division of property are the same in a separation action as in a divorce action, and the division must be an equitable one.
When the provisions of a separation judgment imply that the trial court intended the property division to be final, that judgment is binding upon the parties and it is improper for the court to subsequently alter the property division.