Opinions

State v. Norby 2002 ND 71
Docket No.: 20010144
Filing Date: 4/19/2002
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: 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.

Negaard v. Negaard (cross-ref. w/20030174) 2002 ND 70
Docket No.: 20010251
Filing Date: 4/18/2002
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: 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.

Berg v. Berg 2002 ND 69
Docket No.: 20000355
Filing Date: 4/18/2002
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: 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, et al. v. The County of Barnes, et al. 2002 ND 68
Docket No.: 20010203
Filing Date: 4/18/2002
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Neumann, William

Highlight: 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.

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.