Opinions

McDowell, et al. v. Gillie, et al. 2001 ND 91
Docket No.: 20000269
Filing Date: 5/22/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: Stopping at the scene of an accident and inquiring whether any assistance is needed can constitute the rendering of aid and assistance within the meaning of the Good Samaritan Act.
Generally, issues involving the reasonable person standard and a person's subjective state of mind are inappropriate for disposition by summary judgment.

James, et al. v. Griffin, et al. 2001 ND 90
Docket No.: 20000216
Filing Date: 5/22/2001
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: Once prior acquiescence of a boundary has been destroyed by a nonacquiescent possession, the 20-year period for establishing acquiescence begins running anew.

Kinzley v. Kinzley 2001 ND 89
Docket No.: 20000277
Filing Date: 5/7/2001
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: The trial court's judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Fox v. Fox (cross-ref. w/980198) 2001 ND 88
Docket No.: 20000231
Filing Date: 5/4/2001
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: A choice between two permissible views of the evidence is not clearly erroneous when the trial court's findings are based either on physical or documentary evidence or inferences from other facts or on credibility determinations.
A court's valuation of marital property is dependent upon the evidence presented by the parties.

Estate of Murphy, et al. v. Maus, et al. 2001 ND 87
Docket No.: 20000180
Filing Date: 5/3/2001
Case Type: Appeal - Civil - Malpractice
Author: Sandstrom, Dale

Highlight: To prevail in a legal malpractice action, a plaintiff must establish the attorney's malpractice proximately caused damage to the plaintiff.

Disciplinary Board v. Howe 2001 ND 86
Docket No.: 20000341
Filing Date: 5/3/2001
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: An attorney is appropriately suspended from the practice of law for 120 days when the hearing panel has found clear and convincing evidence of professional conduct violations involving lack of diligence, communication, and expediting litigation, as well as a disciplinary history of five prior disciplinary sanctions.
Prior discipline is not remote, but is relevant as an aggravating factor when the prior incidents establish a pattern of misconduct.
Disciplinary counsel may reasonably bill attorney fees at $75 per hour, which may be assessed against the attorney whose misconduct warranted the imposition of discipline.

Davis v. State 2001 ND 85
Docket No.: 20000335
Filing Date: 5/1/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: A trial court is authorized to resentence a defendant who violates conditions of probation to any sentence that was initially available. Resentencing a defendant to a harsher sentence than his original sentence imposed does not violate double jeopardy or due process.

State v. Ellis (Cross-reference w/20000006) 2001 ND 84
Docket No.: 20000092
Filing Date: 5/1/2001
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: A defendant seeking a change of venue under N.D.R.Crim.P. 21 has the burden of establishing a reasonable likelihood of prejudice so pervasive that a fair and impartial jury cannot be selected in the county of original venue.
Except under N.D.C.C. 12.1-17-02(4), which involves firing a firearm or hurling a destructive device at another human being, aggravated assault is not a lesser included offense of attempted murder.
In sentencing a defendant, a trial court may consider a conviction that was pending appeal during the sentencing hearing.

Interest of C.R.C. (CONFIDENTIAL) 2001 ND 83
Docket No.: 20000286
Filing Date: 5/1/2001
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Kapsner, Carol

Highlight: Termination of parental rights is appropriate when the State proves by clear and convincing evidence that a child is deprived and the deprivation is not due primarily to a lack of financial resources; the causes and conditions of the deprivation will likely continue or will not be remedied; and the child is suffering, or will probably suffer, serious physical, mental, moral, or emotional harm from the deprivation.

State v. Paulson, et al. 2001 ND 82
Docket No.: 20000302
Filing Date: 5/1/2001
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: Kapsner, Carol

Highlight: The failure of the parents of an injured person "incapacitated by the injury from giving the notice" to present the director of the office of management and budget a notice of claim within 180 days of discovery of the injury does not preclude the injured person from suing the State.