State v. Norby, 2002 ND 71 Defenses or objections based on defects in the institution of a prosecution or on defects in the criminal complaint must be raised prior to trial, unless the complaint failed to charge an offense or the district court did not have jurisdiction.
April 18, 2002
Berg v. Berg, 2002 ND 69 There is a presumption only supervised visitation will be allowed a noncustodial parent who has committed domestic violence, and to award unsupervised visitation the court must enter specific findings showing there is clear and convincing evidence the presumption has been rebutted. Under N.D.C.C. 14-09-08.10, the custodial parent must provide health insurance coverage for the children if it is available at no or nominal cost. Otherwise, the noncustodial parent must provide health insurance coverage for the children if it is available at reasonable cost. If neither situation exists, the trial court has discretion to make other provisions for health insurance coverage for the children. Knutson v. The County of Barnes, 2002 ND 68 Failure to present a claim against the state to the office of management and budget within one hundred and eighty days requires dismissal of a subsequent action. Summary judgment is appropriate when a party fails to plead the necessary elements to satisfy the statutory RICO requirements. Negaard v. Negaard, 2002 ND 70 A move sought in good faith and to gain legitimate advantages for the custodial parent and the child must not be denied simply because visitation cannot continue in the existing pattern. A custodial parent's past behavior is a relevant fact for the trial court to weigh in considering his or her motion to change a child's residence to another state.
April 16, 2002
Anderson v. Heinze, 2002 ND 60 No counterclaim can be interposed in an eviction action, except as a setoff to a demand for damages or for rents and profits. In an eviction action, the defendant may show the character of the possessory rights claimed by the parties, but the right to possession of the real estate is the only fact that can be litigated unless either damages or rent is claimed. BTA Oil Producers v. MDU Resources Group, 2002 ND 55 When an impoverishment results from a valid contractual arrangement made by a party, the result is not contrary to equity and there has been no unjust enrichment. Unjust enrichment applies only in the absence of a contract between the parties, and there can be no implied-in-law contract where there is an express contract between the parties relative to the same subject matter. Affidavits containing conclusory statements unsupported by specific facts are insufficient to raise a genuine issue of material fact precluding summary judgment. When a party opposing summary judgment fails to invoke N.D.R.Civ.P. 56(f), the possibility that further discovery will yield favorable evidence raising an issue of material fact is not a ground to deny the motion. Whether an agreement is a contract for sale governed by the Uniform Commercial Code is not decided by the labels used by the parties to characterize the transaction, but by the substance of the transaction and intent of the parties. The filing of a motion to intervene, accompanied by a proper pleading, begins an action for purposes of the statute of limitations. DesLauriers v. DesLauriers, 2002 ND 66 The deliberate infliction of mental anguish upon one parent and the children by the other parent is relevant to the custody determination and may be considered by the trial court. In a custody determination, a trial court has no obligation to consider the preference of an immature child, but the trial court may determine whether or not a child is capable of intelligently choosing between parents. The debt produced by using credit cards to benefit the entire family is, like property, neither uniquely the husband's nor the wife's and is to be allocated by the trial court in its equitable division of the marital estate. Isaak v. Sprynczynatyk, 2002 ND 64 A driving record is a regularly kept record, and establishes prima facie its contents. A party appealing from an administrative hearing officer's decision must comply with the specifications-of-error requirement. Klagues v. Maintenance Engineering, 2002 ND 59 The class-action "joint and common interest" generally exists if one class member's failure to collect would increase the recovery of the remaining members, or if the defendant's total liability does not depend on how the recovery of the claim is distributed among the class members. A joint and common interest is not the same as a common question of law or fact. The class-action "incompatible standards" generally occur when the party opposing the class certification would be unable to comply with one judgment without violating the terms of another judgment. If claims or defenses of members of the proposed class are based on unique facts or individual relationships with the opposing party, class-action certification is inappropriate. Marschner v. Marschner, 2002 ND 67 The burden is on the complaining party to demonstrate a trial court's findings of fact are clearly erroneous. Olander Contracting v. Gail Wachter Investments, 2002 ND 65 Indemnification is a remedy allowing a party to recover reimbursement from another for the discharge of a liability that, as between them, should have been discharged by the other. The district court may enter summary judgment on its own motion as long as the losing party was on notice it had to come forward with all its evidence. An appealing party has the burden of establishing that the trial court erred and that the error was highly prejudicial to the appellant's cause. Without supportive reasoning or citations to relevant authorities, an argument is without merit. A party waives an issue by not providing supporting argument. A trial court has broad discretion over the nature and scope of written questions submitted to the jury, and appellate review is limited to determining whether the trial court abused its discretion. North Dakota's prompt payment statute, N.D.C.C. ch. 13-01.1, does not apply while there is a reasonable dispute between a governmental agency and a business over the amount due or over compliance with a contract for property or services. Olson v. Bismarck Parks and Recreation District, 2002 ND 61 The recreational use immunity statutes do not violate the state equal protection clause when applied to winter sledders injured on a hill owned, operated, and maintained by a public landowner. State v. Knowels, 2002 ND 62 Failure to register as a sex offender is not a strict liability offense but, instead, includes the culpable mental state of "willfully." A crime is completed when all of its essential elements are present and complete. State v. Radcliffe, 2002 ND 56 Judgment of conviction for gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(3). State v. Vincent, 2002 ND 57 Conviction of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(5) and (7). Western National Mutual Ins. Co. v. UND, 2002 ND 63 N.D.C.C. 26.1-32-01 and 26.1-32-03 codify the efficient proximate cause doctrine for determining insurance coverage for property damage where an excluded peril and a covered peril contribute to the damage. An insurer may not contractually exclude coverage when a covered peril is the efficient proximate cause of damage even though an excluded peril may have contributed to the damage. An insured may be entitled to prejudgment interest under N.D.C.C. 32-02-04 when an insurer denies a claim based on an exclusion from coverage, regardless of whether the insured has determined the exact amount of the loss if the amount was ascertainable under a proper construction of the contract. Under N.D.C.C. 32-23-08, an insured is entitled to attorney fees incurred in an insurer's declaratory judgment action in which the court determines there is insurance coverage. Wolfe v. Wolfe, 2002 ND 58 Permanent disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(2).