Opinions

Nodak Mutual Farm Bur. v. Kosmatka, et al. 2000 ND 210
Docket No.: 20000213
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: N.D.R.Civ.P. 54(b) allows final judgment adjudicating fewer than all claims or the rights and liabilities of fewer than all parties in multiparty litigation.
Rule 54(b) certification requires a showing of extraordinary circumstances or that unusual hardship will result in the absence of review.
Rule 54(b) certification is improper when subsequent proceedings in the trial court may render the appellate review moot.

Schultze v. Continental Ins. Co. 2000 ND 209
Docket No.: 20000135
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: When several claims are made against an insured, an insurer has a duty to defend the entire lawsuit if there is potential liability or a possibility of coverage for one of the claims.

Interest of W.E., et al. (CONFIDENTIAL)(Consolidated w/20000079 & 20000080) 2000 ND 208
Docket No.: 20000078
Filing Date: 12/7/2000
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Sandstrom, Dale

Highlight: To terminate parental rights, a three-part test must be satisfied by clear and convincing evidence: (1) the child is deprived; (2) the conditions and causes of deprivation are likely to continue; and (3) the child is suffering or will suffer serious physical, mental, moral, or emotional harm.
Review of a termination proceeding is similar to a trial de novo, with appreciable weight afforded to the juvenile court's decision.

Jones v. Barnett 2000 ND 207
Docket No.: 20000140
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: An action to rescind a quitclaim deed is barred by the statute of limitations when the seller fails to submit evidence she did not discover until years later she had been fraudulently induced to convey the property, when her own pleadings indicate knowledge of material facts accruing beyond the six-year limit for fraud claims.
The statute of frauds invalidates oral contracts for an interest in real property, and a contract action based on an alleged contract collateral to a quitclaim deed is barred by the statute of limitations when the alleged contract was executed beyond the six-year limit for contract actions.

Berlin v. State 2000 ND 206
Docket No.: 20000076
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: To establish ineffective assistance of counsel, the defendant must prove the counsel's performance was deficient and the deficient performance prejudiced the result.
An application for post-conviction relief may be denied for misuse of process if the applicant presents a claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to judgment of conviction and sentence or in a previous post-conviction proceeding.

State v. Gleeson 2000 ND 205
Docket No.: 20000084
Filing Date: 12/7/2000
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: When there is sufficient doubt concerning a defendant's competency, a trial court must on its own motion conduct a hearing to determine whether the defendant is competent to stand trial.
Inconsistent testimony at trial and confusion regarding administrative and criminal proceedings do not create a sufficient doubt of a defendant's competency so as to warrant a hearing on the issue.

Mayo v. Mayo 2000 ND 204
Docket No.: 20000032
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: In deciding a motion to modify custody, a trial court must consider whether there has been a significant change of circumstances and whether modification is necessary to serve the best interests of the child.
The credibility of witnesses, including experts, and the weight to be given their testimony are questions of fact subject to the clearly erroneous standard of review.
A trial court may question witnesses.

Logan v. Bush 2000 ND 203
Docket No.: 20000090
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

State v. Erickstad (CONSOLIDATED W/20000051 and w/20000052 & 20000053)) 2000 ND 202
Docket No.: 20000050
Filing Date: 12/7/2000
Case Type: Appeal - Criminal - Homicide
Author: Kapsner, Carol

Highlight: A defendant seeking a change of venue for adverse pretrial publicity must demonstrate a reasonable likelihood of prejudice so pervasive that it is impossible to impanel a fair and impartial jury.
When a party fails to object to a proposed instruction, fails to specifically request an instruction, or fails to object to omission of an instruction, the issue is not adequately preserved for appellate review and inquiry is limited to whether the jury instructions as given constitute obvious error.
Evidence of value of a vehicle from the Kelley Blue Book Internet website may be admissible under the market report or commercial publication hearsay exception, N.D.R.Ev. 803(17).

Mathre v. State 2000 ND 201
Docket No.: 20000097
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: Defense counsel should consult fully with the accused about any lesser included offenses the trial court may be willing to submit to the jury, but failure to do so is not always ineffective assistance of counsel.
A defendant alleging ineffective assistance of counsel has a heavy burden to demonstrate her counsel's representation fell below an objective standard of reasonableness and she was prejudiced by counsel's deficient performance.