Opinions

Rennich v. ND Department of Human Services 2008 ND 171
Docket No.: 20070335
Filing Date: 9/23/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: Administrative agencies are authorized to promulgate rules implementing statutes which they are empowered to administer or enforce.
The term "rule" under the Administrative Agencies Practice Act does not include explanatory guidelines or manual provisions which are not intended to have the force and effect of law.

State v. Ferrie (Consolidated w/20070371) 2008 ND 170
Docket No.: 20070370
Filing Date: 9/23/2008
Case Type: Appeal - Criminal - Other
Author: Sandstrom, Dale

Highlight: A court may not dismiss a criminal case for failure to prosecute when there has been no notice to the state.

State v. Krogen 2008 ND 169
Docket No.: 20080041
Filing Date: 9/23/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Criminal judgment for driving under suspension is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Johnson (consolidated w/20080022) 2008 ND 168
Docket No.: 20080021
Filing Date: 9/23/2008
Case Type: Appeal - Criminal - Misc. Felony
Author:

Highlight: Criminal judgments for contact by bodily fluids with a law enforcement officer and a person lawfully present in a correctional facility who is not an inmate are summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Ongstad, et al. v. Piper Jaffray & Co. 2008 ND 167
Docket No.: 20070260
Filing Date: 9/8/2008
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: A party seeking to invoke application of federal preemption under the Securities Litigation Uniform Standards Act ("SLUSA") must show that (1) the action is a "covered class action" under the Act; (2) the action purports to be based upon state law; (3) the action alleges the defendant misrepresented or omitted a material fact, or used or employed a manipulative or deceptive device or contrivance; and (4) the action alleges the defendant's misrepresentations, omissions, manipulations, or deceptions were made in connection with the purchase or sale of a covered security.
In determining whether a class action is barred under SLUSA, courts look to the actual nature of the conduct alleged, and plaintiffs may not avoid SLUSA's preemptive effect by creative or artful pleading.
SLUSA's preemptive reach must be broadly construed, and is coextensive with federal regulatory authority over securities fraud under Section 10b and Rule 10b-5.
When a broker purchases or sells securities on a client's behalf without authorization, the unauthorized transaction may constitute securities fraud.

Von Ruden v. ND Workforce Safety and Insurance 2008 ND 166
Docket No.: 20070367
Filing Date: 9/8/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: A court reviewing an administrative appeal may not consider additional evidence not contained in the administrative record filed with the court.
Waiver is a voluntary and intentional relinquishment of a known advantage, benefit, claim, privilege, or right, and may be established by express agreement or may be inferred from a party's acts or conduct.

Doeden v. Stubstad 2008 ND 165
Docket No.: 20070322
Filing Date: 9/4/2008
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: A gift is a transfer of personal property voluntarily made without consideration and need not be in writing.
A valid gift requires an intention by the donor to give property to the donee, coupled with an actual or constructive delivery of the property to the donee and acceptance of the property by the donee.
If a written contract is ambiguous, extrinsic evidence may be considered to determine the parties' intent, and the terms of the contract and the parties' intent are questions of fact.

Grinnell Mutual Reinsurance Co. v. Thies, et al. 2008 ND 164
Docket No.: 20080017
Filing Date: 9/4/2008
Case Type: Appeal - Civil - Insurance
Author: VandeWalle, Gerald

Highlight: An insurance contract is construed to give effect to the mutual intention of the parties as it existed at the time of contracting.
Courts look first to the language of an insurance contract, and if the policy language is clear on its face, there is no room for construction.
A third-party liability insurance policy provides coverage for the insured's liability to another in which the insurer assumes a contractual duty to pay judgments recovered against the insured arising from the insured's negligence, while a first-party property insurance policy provides coverage for loss or damage sustained by the insured in which the insurer promises to provide coverage to the insured upon the happening of the risk insured against.

Coughlin Construction v. Nu-Tec Industries, et al. 2008 ND 163
Docket No.: 20070311
Filing Date: 9/4/2008
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: Objections to damages must be raised in the district court to preserve those issues for appellate review.
Whether a party has made a good-faith effort to mitigate damages is a finding of fact that will be set aside on appeal only if it is clearly erroneous.
Although the officers and directors of a corporation generally are not liable for the ordinary debts of a corporation, the corporate veil may be pierced when the legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime.

Disciplinary Board v. McCray (Consolidated w/ 20070377) 2008 ND 162
Docket No.: 20070376
Filing Date: 9/3/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended from practice of law for six months and one day and ordered to pay costs and expenses of proceeding for violating N.D.R. Prof. Conduct 1.5, 4.1, 5.4, 5.5(e), 7.3(a), 8.4(c), (f), and (g), and N.D.R. Lawyer Discipl. 1.2A(3) and (8).
Improper solicitation of clients occurs when a lawyer involves himself with an organization that independently targets and solicits prospects for his representation.