Opinions

State v. Palmer (CONSOLIDATED W/20010124,20010125,& 20010126) 2002 ND 5
Docket No.: 20010123
Filing Date: 1/15/2002
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: To establish a failure to comply with the statutory process for drawing a jury, the complaining party must provide a factual basis showing the process was prejudicial, actually excluded, systematically excluded, or statistically excluded a fair cross section of the population.
Ordinarily, a claim of ineffective assistance of counsel should be resolved in a post- conviction relief proceeding where the parties can fully develop a record on the issue of counsel's performance and its impact on the defendant's case.

State v. Weaver 2002 ND 4
Docket No.: 20010083
Filing Date: 1/15/2002
Case Type: Appeal - Criminal - Misc. Felony
Author: Neumann, William

Highlight: In reviewing a trial court's denial of a motion for judgment of acquittal, the evidence is viewed in the light most favorable to the prosecution and the appellate court determines only whether there is evidence which could have allowed the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.
When a defendant adopts an all-or-nothing trial strategy and fails to request instructions on lesser included offenses, the trial court's failure to instruct on lesser included offenses does not constitute obvious error.

State v. Marshall (Consolidated w/20010253) 2002 ND 3
Docket No.: 20010193
Filing Date: 1/15/2002
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Denials of N.D.R.Crim.P. 35(a) motion for correction of sentence and N.D.R.Crim.P. 36 motion for correction of a clerical mistake in sentence are summarily affirmed under N.D.R.App.P. 35.1(a)(1).

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.