Opinions

Judicial Vacancy in Judgeship No. 4, Southwest Judicial District 2006 ND 89
Docket No.: 20060098
Filing Date: 5/4/2006
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Judicial Vacancy in Judgeship No. 5, Southeast Judicial District 2006 ND 88
Docket No.: 20060035
Filing Date: 4/26/2006
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Southeast District judgeship retained at Ellendale.

Choice Financial Group v. Schellpfeffer, et al. (Cross-Ref w/20040204) 2006 ND 87
Docket No.: 20050273
Filing Date: 4/25/2006
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: Summary judgment is appropriate only after the non-moving party has had a reasonable opportunity for discovery to develop his position.
Failure to comply with the affidavit requirement of Rule 56(f), N.D.R.Civ.P., is not fatal to a request for additional discovery before a summary judgment motion is decided.
The party seeking additional discovery must identify with specificity what information is sought; how, if uncovered, it would preclude summary judgment; and why it has not previously been obtained.

Steen and Berg Co. v. Berg 2006 ND 86
Docket No.: 20050155
Filing Date: 4/25/2006
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A primary objective of a nonclaim statute is the expeditious and orderly processing of decedents' estates, and if claims against a decedent's estate are not timely filed, the claims are barred as a matter of law.
Casting a claim in terms of title to property is insufficient to avoid the time limitations of the nonclaim statute if the gist of the claim sounds in tort or in contract.

Disciplinary Board v. Mertz 2006 ND 85
Docket No.: 20050360
Filing Date: 4/24/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: An attorney may attempt to compromise an infraction by proposing payment for the individual's injuries and agreeing not to file a potential suit against the individual in exchange for the individual dismissing the complaint.
When representing a client, an attorney may not use means that have no substantial purpose other than to embarrass or burden a third party.

State ex rel. Stenehjem v. FreeEats.com, Inc. 2006 ND 84
Docket No.: 20050171
Filing Date: 4/21/2006
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Preemption of state law is not favored, and the framework for analyzing a preemption claim under the Supremacy Clause begins with the basic assumption that Congress did not intend to displace state law.
A state's police power encompasses the duty to protect the privacy of its citizens, including the authority to protect the peaceful enjoyment of the home and the well-being and tranquility of the community.
The statutory language of the Telephone Consumer Protection Act of 1991 clearly expresses Congress' intent that the Act was not meant to occupy the field within its subject matter.
The Telephone Consumer Protection Act does not preempt a state law which prohibits telemarketing calls using automatic telephone dialing systems or artificial or prerecorded voice messages.

Sanderson, et al. v. Walsh Co., et al. 2006 ND 83
Docket No.: 20050303
Filing Date: 4/21/2006
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Crothers, Daniel John

Highlight: A dismissal without prejudice is not appealable except where the dismissal has the practical effect of terminating the litigation in the plaintiff's forum, e.g., a statute of limitations has run or where litigation is foreclosed in the state court.
Mailing, even by certified mail with return receipt and restricted delivery, does not constitute "delivering" for purposes of service of process on a county or the State under N.D.R.Civ.P. 4(d)(2)(E) and 4(d)(2)(F).

Interest of P.F. (CONFIDENTIAL) 2006 ND 82
Docket No.: 20050302
Filing Date: 4/19/2006
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: A preliminary hearing must be held within seventy-two hours of the filing of a petition for commitment of a sexually dangerous individual. The purpose of the hearing is to determine whether there is probable cause to believe that individual is sexually dangerous.
Expert testimony is not required at the preliminary hearing.
A commitment hearing must be held within sixty days of the finding of probable cause, but the district court may grant an extension if good cause is shown.
Scheduling constraints alone do not automatically establish "good cause" for extending time before the hearing.
In determining whether a person is "sexually dangerous," the State's experts may rely on all sexual predatory conduct, not just that conduct that resulted in a successful conviction on a sexual offense.

Marchus v. Marchus 2006 ND 81
Docket No.: 20050329
Filing Date: 4/19/2006
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A modification of child support should be made effective from the date of the motion to modify, absent good reason to set some other date. The district court may set a later effective date, but its reasons for doing so should be apparent or explained.

Murphy v. State (cross-ref. w/20050428) 2006 ND 80
Docket No.: 20050456
Filing Date: 4/19/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Denial of an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).