Opinions

Terry v. Terry 2002 ND 2
Docket No.: 20010039
Filing Date: 1/4/2002
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: A party seeking to set aside a judgment based upon a stipulation must show that, under the law of contracts, there is justification for setting aside the stipulation.
Rule 60(b), N.D.R.Civ.P., which sets forth the grounds for vacating a judgment, is not to be used to relieve a party from free, calculated, and deliberate choices.

Jaskoviak v. Gruver, et al. 2002 ND 1
Docket No.: 20010065
Filing Date: 1/3/2002
Case Type: Appeal - Civil - Malpractice
Author: Sandstrom, Dale

Highlight: Evidence submitted with a motion for reconsideration after summary judgment has been granted is untimely.
Generally, an integral part of the physician's overall obligation to the patient is the duty of reasonable disclosure of the available choices with respect to the proposed therapy and of the material and known risks potentially involved in each.
In an informed consent case, expert testimony is generally necessary to identify the risks of treatment, their gravity, likelihood of occurrence, and reasonable alternatives.

Disciplinary Board v. Boulger 2001 ND 210
Docket No.: 20010093
Filing Date: 12/31/2001
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A lawyer commits an ethical violation when the lawyer drafts a will for an unrelated client giving the lawyer a contingent bequest of a substantial gift.

Consolidated Telephone v. Western Wireless Corporation, et al. 2001 ND 209
Docket No.: 20010146
Filing Date: 12/28/2001
Case Type: Appeal - Civil - Administrative Proceeding
Author: Neumann, William

Highlight: Unless the Federal Communications Commission's rulings and regulations have been appropriately challenged in the proper federal forum, a state court is not at liberty to review the FCC's statutory interpretation even if its soundness is doubted, and the state court must apply the rulings and regulations as written.
State regulatory bodies and state courts have concurrent jurisdiction to determine preemption questions arising under the federal Communications Act.
A "commercial mobile radio service" as defined by federal law need not obtain a certificate of public convenience and necessity from the Public Service Commission to compete with a landline local exchange telephone service in the state.

Dimond v. State Board of Higher Education (Consolidated w/20010155) 2001 ND 208
Docket No.: 20010154
Filing Date: 12/24/2001
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: A breach of contract action against the State is governed by the three-year statute of limitations in N.D.C.C. 28-01-22.1.

Gepner, et al. v. Fujicolor Processing, Inc., et al. 2001 ND 207
Docket No.: 20010022
Filing Date: 12/21/2001
Case Type: Appeal - Civil - Personal Injury
Author: Neumann, William

Highlight: N.D.R.Civ.P. 60(b) is to be liberally construed and applied, and trial courts should be more lenient in granting motions to vacate default judgments than in vacating judgments in cases which have been tried on their merits.
The Workers Compensation Bureau's determination of benefits to be awarded under the Act are not res judicata on the issue of damages available in an injured worker's separate civil action against an uninsured employer under N.D.C.C. 65-09-02.
A defendant may seek an independent mental examination of the plaintiff under N.D.R.Civ.P. 35(a) by presenting evidence placing the plaintiff's mental condition in controversy.

Belgarde, et al. v. Askim, et al. 2001 ND 206
Docket No.: 20010179
Filing Date: 12/20/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: Before dismissing a cause of action to sanction a party for destruction of evidence, the trial court must consider the culpability of the party against whom sanctions are being imposed, the prejudice to the party moving for sanctions, and the availability of less severe alternative sanctions.

Interest of M.C.H. (CONFIDENTIAL) (CROSS-REF. W/20010132) 2001 ND 205
Docket No.: 20010194
Filing Date: 12/20/2001
Case Type: Appeal - Criminal - Juvenile Law
Author: Sandstrom, Dale

Highlight: Juveniles between the ages of seven and fourteen have no common law right to a presumption of incapacity to commit a crime, because the criminal capacity of children between the ages of seven and fourteen has been declared by statute.

City of Fargo v. Roberson (see Docket Memo) 2001 ND 204
Docket No.: 20010038
Filing Date: 12/20/2001
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Neumann, William

Highlight: The Supreme Court will not consider questions that were not presented to the trial court and are raised for the first time on appeal.

Interest of D.P. (Confidential) 2001 ND 203
Docket No.: 20010285
Filing Date: 12/20/2001
Case Type: Appeal - Civil - Mental Health
Author: Neumann, William

Highlight: For hospitalization in a mental health case, the district court must find by clear and convincing evidence that alternative treatment is not adequate or hospitalization is the least restrictive alternative.