Opinions

Marschner v. Marschner (cross-ref. w/20000172) 2002 ND 67
Docket No.: 20010220
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Divorce - Property
Author: Neumann, William

Highlight: The burden is on the complaining party to demonstrate a trial court's findings of fact are clearly erroneous.

DesLauriers v. DesLauriers 2002 ND 66
Docket No.: 20010145
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: 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.

Olander Contracting v. Gail Wachter Investments, et al. 2002 ND 65
Docket No.: 20010086
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: 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.

Isaak v. Sprynczynatyk 2002 ND 64
Docket No.: 20010291
Filing Date: 4/16/2002
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: 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.

Western National Mutual Ins. Co. v. UND 2002 ND 63
Docket No.: 20010118
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: 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.

State v. Knowels (cross-ref. w/20030093) 2002 ND 62
Docket No.: 20010147
Filing Date: 4/16/2002
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: 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.

Olson, et al. v. Bismarck Parks and Recreation District 2002 ND 61
Docket No.: 20010249
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Personal Injury
Author: Kapsner, Carol

Highlight: 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.

Anderson, et al. v. Heinze 2002 ND 60
Docket No.: 20010127
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: 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.

Klagues, et al. v. Maintenance Engineering 2002 ND 59
Docket No.: 20010213
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Contracts
Author: Neumann, William

Highlight: 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.

Wolfe v. Wolfe 2002 ND 58
Docket No.: 20010276
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Permanent disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(2).