Slip opinions decided 2019 — North Dakota Reports

Order on petition for temporary lawyer practice.

A district court's award of unsupervised parenting time is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

An appeal from a juvenile court order finding five children to be deprived is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

An appeal from a district court's order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(7). If it is easier to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice, that course should be followed.

Summarily affirm default judgment based on a lack of errors appearing on the face of the judgment roll.

Summary affirmance of jury conviction for actual physical control under N.D.C.C. § 39-08-01.

An appeal from a divorce judgment is summarily affirmed under Koenig v. Schuh, 2016 ND 252, 888 N.W.2d 385, and N.D.R.App.P. 35.1(a)(2), (4), and (7).

An appeal from a juvenile court order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

In a post-conviction relief proceeding, an applicant is entitled to notice that his application may be summarily dismissed.

A district court's finding respondent is mentally ill and requires treatment will not be reversed unless it is clearly erroneous. To show a respondent is a person requiring treatment, the petitioner must prove by clear and convincing evidence that the person is mentally ill and there is a reasonable risk that, if the person is not treated, he poses a serious risk of harm to himself, others, or property.

A county court acquired jurisdiction over property when executor of estate filed a petition to sell the property and the petition substantially complied with statutory requirements. When the sale of property by an executor or administrator of an estate is required to be confirmed by the court under statute, the order confirming the sale cures all nonjurisdictional errors and irregularities occurring after the court obtains jurisdiction.

The district court has broad discretion in deciding evidentiary matters, including whether to admit telephonic testimony. Interlocutory orders generally are not appealable and may be revised or reconsidered any time before the final order or judgment is entered. Claims for ineffective assistance of counsel have not been extended to civil actions for divorce.

A marital property distribution in a divorce case is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

A transferor cannot convey an interest greater than the transferor has in the property, and a transferor who does not hold title to property cannot pass or transfer title to that property.

Criminal judgment of preventing arrest is summarily affirmed under N.D.R.App.P. 35.1(a)(3). N.D.R.Crim.P. 32., mandates a defendant be given an opportunity to make a statement prior to sentencing. An individual who has been denied the right of allocution has generally met the burden of showing their substantial rights were affected.

A district court's decision on whether to grant a motion for a continuance will not be reversed on appeal absent an abuse of discretion. Whether or not a party was a good-faith purchaser without notice of a competing interest is a mixed question of fact and law. A good-faith purchaser is one who acquires rights without actual or constructive notice of another's rights.

If a post-trial motion does not require the amendment of the judgment, N.D.R.App.P. 4(a)(3) applies and the time for appeal begins upon service of the notice of the order disposing of the motion. Where the order disposing of the motion necessitates the entry of an amended judgment, N.D.R.App.P. 4(a)(1) applies and the time for appeal begins upon the service of the notice of the entry of the amended judgment. An initial judgment did not foreclose on an award of attorney fees under N.D.R.Civ.P. 54(e)(3). This Court does not consider questions that were not presented to the district court and that are raised for the first time on appeal.

A sentence in excess of a statutory provision or in some other way contrary to an applicable statute is an illegal sentence.

Closing a trial to the public without proper analysis is a structural error requiring automatic reversal.

A district court's finding that a person is mentally ill and in need of treatment will not be reversed unless it is clearly erroneous. In determining whether an individual is a person requiring treatment a district court must consider whether the individual is mentally ill, and whether there is a reasonable expectation that, if the individual is not hospitalized, there exists a serious risk of harm to himself, others, or property.

A Job Service decision is affirmed when a reasoning mind reasonably could have determined the agency's factual conclusions were proved by the weight of evidence.

District court division of marital property was not clearly erroneous. While long-term marriages generally support an equal distribution of the marital property, a court does not err by considering how the property was acquired and acting to preserve the viability of a business operation like a family farm by awarding a majority of the marital property, and its corresponding debt, to one party.

District court judgment finding reformation of 1959 warranty deed barred by the ten-year statute of limitation under N.D.C.C. § 28-01-15(2) is affirmed.

When a divorce settlement agreement is incorporated and merged into a judgment, only the final judgment is interpreted and enforced, not the underlying contract between the parties.

A witness may testify from personal knowledge about the witness's own actions and observations even when they relate to acts technical in nature. If evidence is admitted in error, this Court will consider the entire record and decide in light of all the evidence whether the error was so prejudicial the defendant's rights were affected and a different decision would have occurred absent the error.

Whether a fence is so enclosed as manifestly to exclude intruders is a finding of fact. Appellant's conduct did not rise to the level of "tumultuous and violent" as required under N.D.C.C. § 12.1-25-01.

A district court's choice for primary residential responsibility between two fit parents is a difficult one, and the Supreme Court will not retry the case or substitute its judgment for that of the district court when its decision is supported by the evidence. Permanent spousal support may be appropriate when there is a substantial income disparity between the spouses that cannot be remedied by property division or rehabilitative spousal support.

District court judgment summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

A district court order denying application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A criminal judgment for driving with a suspended license is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

A juvenile court order terminating parental rights to H.B., V.B, and A.B. is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Judgment revoking probation and sentencing defendant to six years' imprisonment summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4) and (7).

A district court's award of residential responsibility and child support, the implementation of supervised parenting time, and decision to issue an emergency ex parte custody order are summarily affirmed under N.D.R.App.P. 35.1(a) (2), (3) and(4).

Jury verdict finding defendant guilty of willfully giving false information to a law enforcement officer under N.D.C.C. § 12.1-11-03(1) and preventing arrest under N.D.C.C. § 12.1-08-02(1) is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

A district court's divorce judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Conviction of class AA felony gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Party was required to provide clear and convincing evidence that warranty deeds did not correctly state the parties' intent. Consent to try an issue outside the pleadings cannot be implied from evidence which is relevant to the pleadings but which also bears on an unpled issue.

For purposes of Medicaid recovery from a surviving spouse's estate, the Department's recovery from a deceased recipient's joint tenancy property is limited to the deceased recipient's fractional interest in the property.

The statutory implied consent advisory must be read after a person is placed under arrest and before a chemical test may be administered to determine alcohol concentration. The totality of the circumstances must be considered to determine whether a person voluntarily consented to submit to a blood test to determine blood-alcohol concentration. An accurate reading of the implied consent advisory does not constitute per se coercion.

The right to appeal in this state is purely statutory, and without statutory authorization to hear an appeal this Court lacks jurisdiction. An order approving pretrial diversion is not appealable under statutory authority contained in N.D.C.C. 29-28-06. Supervisory writs may be issued in extraordinary cases to prevent injustice when no adequate alternative remedies exist. While it is true N.D.R.Crim.P. 11(a)(2) does not require ritualistic compliance to enter a conditional guilty plea, courts must substantially comply with the rule's procedural requirements to ensure defendants enter the plea voluntarily and intelligently.

District court erred in finding mother had not made a prima facie case for modification of primary residential responsibility.

A district court's decision granting judgment on the pleadings under N.D.R.Civ.P. 12(c) is reviewed de novo. A public entity violates the open records law when a person's right to review or receive a copy of a record that is not exempt or confidential is denied or unreasonably delayed or when an excessive fee is charged. A civil action for a violation of the open records law may be filed after an unreasonably delayed disclosure if a person alleges prejudice or harm caused by the delay. An affidavit of service by mail filed with the court establishes service of the referenced documents. Service of an unsigned copy of the affidavit does not vitiate the evidence of service presented to the court by filing the signed affidavit.

When an applicant for post-conviction relief alleges newly discovered evidence, a district court errs in sua sponte summarily denying the application, after the State has responded to the application, without providing the applicant notice and the opportunity to submit an answer with supporting materials to show the existence of a genuine issue of material fact. A district court's error in sua sponte summarily denying an application for post-conviction relief alleging newly discovered evidence after response by the State does not prejudice the applicant if the district court later considers and correctly rules on the merits in the applicant's subsequent motion for reconsideration.

The district court has broad discretion in making contempt decisions and will not be overturned unless an abuse of discretion occurs. The lack of a trial transcript does not allow for meaningful and intelligent review of issues on appeal. The district court did not abuse its discretion in finding plaintiff a vexatious litigant when evidence supported finding litigant persistently and without reasonable grounds filed motions and requests not warranted under existing law.

Agreements between divorcing parties are encouraged, and stipulated spousal support awards should be changed only with great reluctance. The party seeking modification of spousal support must prove a material change in the financial circumstances of the parties warranting a change in support. The district court must consider the relevant factors under the Ruff-Fischer guidelines in determining an award of spousal support.

An arresting officer's inclusion of additional information in the implied consent advisory must not materially mislead or coerce a defendant. Whether a defendant voluntarily consents to chemical testing must be determined by the totality of the circumstances.

Whether a suspect is in custody is a mixed question of fact and law which is fully reviewable on appeal. A reasonable person would not believe he was in custody when he traveled unrestrained to the police station, was not placed under arrest or otherwise restrained, was told he was free to leave at any time, sat closest to the door during the interview, was interviewed in a room with only one law enforcement agent present, did not show any apprehension about being in the agent's company, and told the agent he understood he was free to leave at any time. It is the State's burden to prove the voluntariness of a defendant's confession and to produce evidence on relevant factors. Even if a suspect is not in custody and Miranda warnings are given gratuitously, they are not rendered wholly irrelevant in determining whether incriminating statements were given voluntarily. Parties raising a constitutional claim must provide persuasive authority and a reasoned analysis to support the claim.

To establish an inverse condemnation claim, a property owner must prove a public entity took or damaged the owner's property for a public use and the public use was the proximate cause of the taking or damages. Whether private property was taken for public use is a question of law, fully reviewable on appeal. The district court has broad discretion determining whether to allow expert witness testimony, and its decision will not be reversed on appeal unless it abused its discretion. The district court's decision to grant a motion for judgment as a matter of law is based on whether the evidence, viewed in the light most favorable to the party against whom the motion is made, leads to but one conclusion as to the verdict about which there can be no reasonable difference of opinion. Whether the evidence is sufficient to create a question of fact for the jury is a question of law.

A district court's award of primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. Absent a reason for denying it, some form of extended visitation with a fit non-custodial parent is routinely awarded. A district court's ruling on decision-making responsibility is a finding of fact, reviewed under the clearly erroneous standard.

A district court order denying discharge from civil commitment as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2)

A district court order denying discharge from civil commitment as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2)

Section 14-05-24.1(3), N.D.C.C., which authorizes the district court to terminate spousal support when the spouse receiving support has been habitually cohabiting with another individual in a relationship analogous to a marriage for more than one year, does not apply when the parties have a contrary written agreement.

In general, when an appeal from a local governing body's decision is authorized by law, equitable relief against the enforcement of the decision will not be allowed. An appeal of a local governing body's decision must be taken within 30 days of the decision.

The primary objective in construing a trust instrument is to ascertain the settlor's intent. When a trust instrument is unambiguous, the settlor's intent is ascertained from the language of the trust document itself. An ambiguity exists when rational arguments can be made in support of contrary positions as to the meaning of the term, phrase, or clause in question. Whether a trust is ambiguous is a question of law, fully reviewable on appeal.

Summary affirmance of district court's revocation of probation and resentencing.

A district court's orders changing primary residential responsibility, denying a motion for continuance and denying a motion for a new trial are summarily affirmed under N.D.R.App.P. 35.1(a)(2),(3) and(4).

Juvenile court's finding that the children were exposed to aggravated circumstances was not clearly erroneous.

Juvenile court's finding that the children were exposed to aggravated circumstances was not clearly erroneous.

District court's finding that applicant for post-conviction relief failed to establish his counsel's representation fell below an objective standard of reasonableness was not clearly erroneous.

District court judgment affirming a Workforce Safety and Insurance order denying workplace injury benefits is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

District court judgment affirming a Workforce Safety and Insurance order denying workplace injury benefits is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

We review a juvenile court's findings of fact under the clearly erroneous standard. A juvenile court's interpretation of a statute is a question of law, which is fully reviewable on appeal. Under N.D.R.Juv.P. 2(a)(3)(A), if an initial hearing is held within 30 days after the filing of the petition, an adjudication hearing must occur within 30 days after the initial hearing. If there is no initial hearing, the adjudication hearing must occur within 30 days after the filing of the petition.

We review a juvenile court's findings of fact under the clearly erroneous standard. A juvenile court's interpretation of a statute is a question of law, which is fully reviewable on appeal. Under N.D.R.Juv.P. 2(a)(3)(A), if an initial hearing is held within 30 days after the filing of the petition, an adjudication hearing must occur within 30 days after the initial hearing. If there is no initial hearing, the adjudication hearing must occur within 30 days after the filing of the petition.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith, but may be admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In considering whether evidence of prior crimes, wrongs, or bad acts is admissible, a court must determine: (1) the purpose for which the evidence is introduced (2) whether the evidence of the prior bad acts is substantially reliable or clear and convincing and (3) whether proof of the crime charged permits the trier of fact to establish the defendant's guilt or innocence independently on the evidence presented without considering the prior bad acts. A court must give a cautionary instruction about the limited use of prior bad acts evidence, and must examine whether the probative value of the evidence substantially outweighs its possible prejudicial effect. Jury instructions must correctly and adequately inform the jury of applicable law and it is not error to refuse to give defendant's jury instruction if it may mislead or confuse the jury.

Issues raised for the first time on appeal will not be considered unless they rise to the level of obvious error. An unambiguous oral sentencing pronouncement will control over an ambiguous written sentence. The district court has discretion in sentencing a criminal defendant, and review of a sentence on appeal is limited to determining whether the district court acted within the limits prescribed by statute or substantially relied on an impermissible factor.

A district court must find an individual has serious difficulty controlling his behavior to continue that person's commitment as a sexually dangerous individual. The conduct relied upon to demonstrate the individual's serious difficulty controlling his behavior need not be sexual in nature.

A district court must find an individual has serious difficulty controlling his behavior to continue that person's commitment as a sexually dangerous individual. The conduct relied upon to demonstrate the individual's serious difficulty controlling his behavior need not be sexual in nature.

Injunctive relief may be granted against public entities without exhaustion of administrative remedies where the plaintiff challenges the legality and validity of a decision rather than the public entity's wisdom, propriety, or correctness in making the decision. Raising the grade of streets is consistent with travel or transportation, the primary use of streets. A statutory dedication transfers the fee of the property to the public. Publicly filed documents are presumed regular and correct until shown otherwise by evidence. A party who fails to timely object to the clerk's taxation of costs is precluded from seeking review of these costs on appeal.

An attorney's failure to object to admission of evidence at trial because the attorney believes the record created in a pretrial motion in limine has preserved the issue falls outside the wide range of reasonable attorney performance. Where prejudice is also shown, such a failure to object to prior bad acts evidence at trial constitutes ineffective assistance of counsel.

We distinguish peremptory demands for a change of judge from a demand for a change of judge based on bias. Under N.D.C.C. § 29-15-21, subsequent applications for post-conviction relief are a continuation of the underlying action and considered a single proceeding. Motions seeking the recusal of a judge for bias or prejudice must be considered by the judge who is sought to be disqualified.

District court did not err in admitting lawfully obtained text message conversation from an undercover officer's cell phone into evidence. District court did not err in finding Miranda warnings were knowingly, voluntarily, and intelligently waived by defendant. Defendant did not meet his burden of proof for N.D.R.Crim.P. Rule 29(a) motion for acquittal. A rational fact-finder could find defendant failed to prove entrapment by a preponderance of the evidence.

Sufficient probable cause existed to support the magistrate's issuance of a search warrant.

A defendant may not challenge the constitutionality of a statute they were not charged under. A defendant who refuses to take a chemical test cannot rely solely on multiple recitations of the implied consent advisory to prove violations of due process rights. The Court will not address inadequately briefed issues.

The criminal offense of refusal to submit to chemical testing is a strict liability offense.

A district court's decision on a motion to modify primary residential responsibility is a finding of fact, subject to the clearly erroneous standard of review.

The relationship between a bank and its customers is a debtor-creditor relationship, which ordinarily does not impose a fiduciary duty upon the bank. A fiduciary relationship may arise between a bank and its borrowers under circumstances reflecting a borrower's reposing of faith, confidence and trust in a bank with a resulting domination, control or influence exercised by the bank over the borrower's affairs.

A public employee, who has a property interest in his employment, may not have his employment terminated without due process. Due process requirements are met when the employee is provided with appropriate pre-termination and post-termination proceedings.

A party appealing from a contempt order must file a notice of appeal with the clerk of the supreme court within 60 days after entry of the judgment or order being appealed. A district court's decision on contempt will not be reversed on appeal unless the court abused its discretion.

An affirmative defense jury instruction will only be given if there is evidence to support it. A district court does not abuse its discretion by denying a requested jury instruction on the affirmative defense of necessity when the proponent of the instruction fails to present evidence on one of the elements of the necessity defense. The necessity defense has not yet been recognized or precluded in a criminal case by this Court.

At a hearing under N.D.C.C. 39-20-05, the regularly kept records of the director and state crime laboratory may be introduced once introduced, those records establish prima facie their contents without further foundation. Once a chemical breath test record is admitted into evidence, establishing prima facie its contents, a party may rebut the presumption of fair administration by establishing a deviation from approved procedures or a lack of fair administration despite compliance with approved procedures. Unless the defendant produces enough evidence to rebut the foundation of fair administration, evidence discrediting chemical breath test results will affect the weight given the test results not their admissibility. Steps not expressly included in the approved method published by the State Toxicologist are not foundational requirements for the admission of chemical breath test records.

The extent of a prescriptive easement is fixed by the use through which it was created, and use beyond the easement's originally created use may be a governmental taking. A trial court may award reasonable attorney fees, expert witness fees, or litigation costs to the prevailing party in an eminent domain action. A landowner's reasonable attorney fees may include the cost of adjudicating an appeal.

A retail installment contract must disclose charges and fees that are finance charges as finance charges to comply with the disclosure requirements of the Retail Installment Sales Act.

Burden is on moving party to prove vehicle properly identified by evidence. Reasonable suspicion not present where officers could not reasonably identify vehicle after tip.

A district court's finding that the facts support a reasonable and articulable suspicion is fully reviewable on appeal. Merely observing a driver tapping the illuminated screen of his cell phone for two seconds does not create reasonable and articulable suspicion that a violation of N.D.C.C. 39-08-23 has occurred. It is not reasonable to conclude an officer made a reasonable mistake of fact if he is unable to articulate why he thought an individual's conduct violated the law.

A district court order denying a defendant's motion to withdraw a guilty plea is affirmed if the defendant fails to show a "fair and just" reason for withdrawal. Issues not adequately raised at the trial level will not be addressed for the first time on appeal.

In considering a speedy trial claim, a district court must balance the length of the delay, the reason for the delay, the accused's assertion of the right to a speedy trial, and the prejudice to the accused.

A personal representative is not precluded from filing petitions as an interested person in the supervised administration of an estate while simultaneously performing fiduciary duties to distribute property according to a will and the best interests of an estate. A probate court has jurisdiction to determine title to property alleged to belong to an estate and the value of that property. Petitions and accompanying documents filed with the probate court are deemed to include an oath or affirmation of truthfulness. An appellate court reviews a final report and accounting allocating estate assets under an abuse-of-discretion standard.

When awarding a guardianship, the district court must determine whether the parents should be awarded visitation. The district court may not delegate determination of a visitation schedule.

The proper remedy for fraud is recision of the contract. Parties agreed to continue with the sale of the real property after failure of condition precedent. Finding that a contract for deed was ambiguous required remand for interpretation of that contract for deed using extrinsic evidence. A contract is ambiguous when reasonable arguments can be made for different positions on its meaning.

Attorney reprimanded.

Criminal judgment finding defendant guilty of unlawful possession of a controlled substance in violation of N.D.C.C. § 19-03.1-23 and unlawful possession of drug paraphernalia in violation of N.D.C.C. § 19-03.4-03 is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Appeal from an order denying motion to vacate judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

A district court judgment awarding a divorce, establishing primary residential responsibility, child support, and parenting time are summarily affirmed under N.D.R.App.P. 35.1(a)(2), (3) and(4). An argument that is not adequately articulated, supported, and briefed will not be considered on appeal.

A district court's decision regarding attorney fees will not be set aside on appeal absent an abuse of discretion. A settlement agreement and mutual release of claims was not "evidence of debt" under N.D.C.C. § 28-26-04, so as to preclude enforcement a contractual provision providing for recovery of attorney fees and costs.

Board of Higher Education policies, rules and regulations adopted as part of its policy manual govern termination of university faculty members and are part of the employment contract between the institution and the faculty member. Generally, substantial compliance with the procedural requirements for termination is sufficient if their purpose is fulfilled. The separation of powers doctrine does not permit judicial examination of the adequacy of a university president's review of the record.

When an ambiguous contract is at issue, the parties' intent becomes a question of fact. Issue was remanded for a finding on the nature of the parties' agreement.

A district court may grant a motion for judgment as a matter of law if a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue. In considering a motion for judgment as a matter of law, the court must apply a rigorous standard with a view toward preserving a jury verdict.

The doctrine of administrative res judicata prevents collateral attacks on administrative agency final orders. An issue is not ripe for review if it depends on future contingencies which, although they might occur, necessarily may not, thus making addressing the question premature.

Rule 35, N.D.R.Crim.P., requires notice of intent to correct a sentence be given to the parties.

District court erred by reducing a criminal sentence based on a statute enacted after the conviction had been finalized.

A district court judgment is summarily reversed under N.D.R.App.P. 35.1(b).

The district court did not abuse its discretion by denying the motion to dismiss for undue delay. The district court did not err as a matter of law and did not come to any erroneous factual determinations in finding the defendant's right to a speedy trial was not violated. Evidence was sufficient to support guilty verdicts. No-contact order was properly considered a condition of probation.

A summary judgment entered after a defendant fails to respond to the motion for summary judgment is an adjudication on the merits and not a default judgment. A district court's decision whether to vacate a judgment will not be disturbed on appeal absent an abuse of discretion.

A finalized criminal sentence may not be reduced by statute.

The statute of limitations of a claim for relief is not tolled by the defendant's absence from the state under N.D.C.C. § 28-01-32 when the state's courts can obtain jurisdiction by completing service of process by publication.

Under the totality of the circumstances, probable cause existed for a search warrant based on evidence found during garbage search. A sufficient nexus to the residence for the purposes of probable cause does not always require indicia of residency be found in the garbage.

Search of supervised probationer's residence was constitutional where the probationer was incarcerated due to a probation violation, the supervised probation conditions included a search clause, and law enforcement officers had reasonable suspicion unlawful activity was afoot due to a child's statement alluding to the presence of drugs at the probationer's residence. Conditions of probation may apply when a person is incarcerated until such time as the probation is terminated or revoked.

An appeal only from the denial of a motion for reconsideration does not permit the appellant to attack the underlying order from which the appeal could have been taken but was not brought.

For a warrantless search or seizure to fall into the abandonment exception, the State must show evidence of abandonment was present through objective facts known to the officer at the time of the search or seizure. Further, even when a cell phone is considered abandoned, a search of its contents is always considered unreasonable and thus is not permitted without a warrant.

Interlocutory orders in an action are merged into the final judgment and may be reviewed on appeal of the judgment. Review on appeal is limited to issues litigated below and the arguments presented on appeal. An order holding a person in contempt is a final order for purposes of appeal. The time limit for filing a notice of appeal is jurisdictional, and we dismiss an appeal if we conclude we do not have jurisdiction. A district court has broad discretion over the presentation of evidence and the conduct of trial, but it must exercise its discretion in a manner that best comports with substantial justice. District courts have broad discretion to allow or refuse a party to reopen the record to introduce additional evidence.

Motion to withdraw consent to termination of parental rights was untimely under N.D.C.C. § 27-20-45(6) because it was made more than thirty days after the order terminating parental rights was issued.

District court erred on remand by finding child support obligor underemployed without explaining why its prior determination the obligor had a gross annual income of $171,560.66 and net annual income of $113,916 was incorrect.

A premarital agreement may be unenforceable if it is unconscionable at the time of execution, at the time of separation or marital dissolution, or at the time of enforcement. Whether a premarital agreement is unconscionable presents a question of law, but it turns on factual findings related to the relative property values, the parties' financial circumstances, and their ongoing need. A premarital agreement is a contract, and its interpretation is a question of law, which is reviewed de novo on the entire record on appeal. A district court's decisions regarding the division of marital property are treated as findings of fact and may be reversed on appeal if these findings are clearly erroneous. The district court has broad discretion to award attorney fees in divorce proceedings.

Section 32-42-02, N.D.C.C., does not violate the equal-protection provisions of N.D. Const. art. I, § 21. The right to recover for personal injuries is an important substantive right subject to the intermediate standard of equal-protection analysis. A district court's decision whether to grant or deny a new trial under N.D.R.Civ.P. 59(b) rests entirely within its discretion, and review of a denial of a new trial motion is limited to deciding whether the court manifestly abused its discretion. Testimony from a physician that a plaintiff's medical condition is permanent and would worsen is sufficient to establish foundation for future medical expenses. Evidence of medical expenses can be admitted without an expert medical opinion that the expenses were necessitated by the defendant's conduct. When considering claims of prejudicial misconduct, courts consider the nature of the comments the jury heard, their probable effect on the jury in the context of the entire trial, and the district court's instructions to the jury. A district court has discretion to balance the probative value of proffered evidence against the dangers enumerated in N.D.R.Ev. 403. A district court does not abuse its discretion by admitting expert testimony whenever specialized knowledge will assist the trier of fact, even if the expert does not possess a particular expertise or specific certification. When the verdict is reasonably within the scope of the evidence presented and the instructions of the court, the plaintiff is entitled to have judgment entered upon the jury's verdict.

An action barred by a statute of limitations generally is dismissed under the summary judgment standards of N.D.R.Civ.P. 56. Determining when a cause of action accrues is normally a question of fact, but it becomes a question of law when the material facts are undisputed. Under the discovery rule the accrual of a claim is postponed until the plaintiff knew, or with the exercise of reasonable diligence should have known, of the wrongful act and its resulting injury.

The case is remanded for additional findings of fact on whether a person was likely to reoffend and had serious difficulty controlling behavior, as required to deny sex offender discharge from civil commitment as a sexually dangerous individual.

Summary affirmance of district court's denial of post-conviction relief.

A district court's order denying a motion to return bond is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (7).

Continuing treatment order summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A district court order summarily dismissing a post-conviction relief application is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A district court's order denying application for post-conviction relief and order denying motions for reconsideration and to correct a sentence are summarily affirmed under N.D.R.App.P. 35.1(a)(4), (6), and (7).

District court's finding that an application for post-conviction relief failed to establish counsel's representation fell below an objective standard of reasonableness was not clearly erroneous.

A claimant neither needs to be the addressee nor needs to live at the address on a package to claim a search and seizure right to the package. A claimant only needs to show a possessory interest in the package.

A district court abused its discretion by scheduling a hearing on defendant's motion and then cancelling the hearing without explanation leaving the defendant unable to complete a hearing request under N.D.R.Ct. 3.2(a)(3) on his own. A district court judge's ruling regarding the merits of the case or the law relating to the proceedings does not evidence bias to support reassignment on remand.

Collateral estoppel generally forecloses relitigation, in a second action based on a different claim, of a particular issue of either fact or law which was litigated and determined in a prior suit. Collateral estoppel applies to a party or a person in privity with a party to the prior adjudication, and a person is not in privity with a party to the prior suit if he acquired an interest in the subject matter affected by the prior adjudication through one of the parties before the prior adjudication. When a dissolved corporation is reinstated, generally its rights and privileges are restored retroactively to the date of dissolution, except as to those rights and assets of which the corporation was divested prior to reinstatement, and the corporation is treated as if it had never been dissolved.

The State did not establish clear and convincing evidence of a nexus between J.M.'s disorder and his sexual dangerousness to others.

A Rule 11(d) motion to withdraw a guilty plea, filed after entry of the criminal judgment and a stipulated dismissal of the direct appeal, is not a critical stage of the proceeding affording the movant the constitutional guarantee to counsel nor a stage of the proceeding requiring counsel under N.D.R.Crim.P. 44(a). A Rule 35(b) motion for reduction of sentence is neither a critical stage of the proceeding affording the movant the constitutional guarantee to counsel nor a stage of the proceeding requiring counsel under N.D.R.Crim.P. 44(a).

An application of N.D.C.C. § 12.1-32-08(1) to allow other recipients to recover restitution does not conflict with, and can be harmonized with, N.D. Const. art. I, § 25.

A county's lease of minerals executed in violation of mandatory competitive bidding statutes renders the lease invalid. Laches is a delay or lapse of time in commencing an action that works a disadvantage or prejudice to the adverse party because of a change in conditions during the delay.

A creditor must strictly comply with the statutory provisions relating to the foreclosure of a mortgage, including the provisions for notice before foreclosure. A defective notice before foreclosure is fatal to a creditor's foreclosure action if the issue is raised during the pendency of the action and impairs a right of the debtor.

An order granting a new trial is not reviewable without N.D.Civ.P. 54(b) certification. A two prong inquiry is used to determine whether an order is appealable if unadjudicated claims remain to be resolved by the trial court. First, the order must satisfy one of the statutorily enumerated bases for appeal. Second, the order must be certified under N.D.R.Civ.P. 54(b).

Checking the boxes denoting an odor of alcohol and refusal of chemical testing, in combination with a note in the explanation box stating the driver declined field sobriety tests, is sufficient to render the Report and Notice Form adequate under N.D.C.C. § 39-20-04.

The purpose of the expert opinion affidavit requirement under N.D.C.C. § 28-01-46 is to screen totally unsupported claims and to prevent protracted litigation when a medical malpractice plaintiff cannot substantiate a basis for the claim. District courts should be cautious when granting summary judgment on propositions of law that were not advanced by the parties. This Court on appeal does not provide advisory opinions.

An informed consent advisory omitting statutory language regarding refusal to submit to a urine test does not comply with N.D.C.C. § 39-20-01(3)(a).

Accomplice to murder under circumstances manifesting extreme indifference to the value of human life is a cognizable offense under North Dakota law. A person may be convicted as an accomplice if the person intends that an offense be committed and aids another in committing the offense. A defendant may not withdraw a guilty plea after the district court has imposed sentence unless the defendant shows withdrawal is necessary to correct a manifest injustice.

In summary eviction proceedings, the right to possession of the property is the only fact that can be litigated unless damages or rent is claimed.

Summary dismissal of a post-conviction application for ineffective assistance of counsel is appropriate if the applicant does not claim that, but for his attorney's errors, he would have insisted on going to trial.

A traffic stop is not expanded by incidental questions the officer asks without reasonable suspicion so long as they occur prior to the completion of the stop and the officer does not deliberately delay completion of the stop.

Where eminent domain is exercised by a utility business, condemnation for service to a single industrial customer does not forestall a finding that the taking is for a public use. In the absence of bad faith, gross abuse of discretion, or fraud by the condemning authority in its determination that the property sought is necessary for the authorized use and is pursuant to specific statutory authority, such determination should not be disturbed by the courts. The Supreme Court does not address inadequately briefed issues.

Order and judgment dismissing plaintiff's claims with prejudice and defendant's third-party claims without prejudice was appealable because plaintiff's claims were adjudicated and third-party claims were dependent on plaintiff's claims. The elements for a prima facie case for breach of contract are: (1) the existence of a contract (2) breach of the contract and (3) damages which flow from the breach. Statutory protections for people assisting or dealing with a conservator for value in a transaction do not apply to transactions between two third-parties. The general rule in the case of a breach of contract is that the measure of damages is the amount which will compensate the injured person for the loss which a fulfillment of the contract would have prevented or the breach of the contract now requires.

A defendant may not avoid the procedures of the Uniform Postconviction Procedure Act by designating his motion under a rule of criminal procedure or by filing his motion in his criminal file, rather than filing as a new action for post-conviction relief.

An applicant for post-conviction relief should have 14 days to respond to a motion to dismiss under N.D.R.Ct. 3.2(a)(2).

The burden of proof ordinarily rests with the party who possesses the facts on the issue in dispute. Since entities and persons are unable to guaranty their own debts, courts will not construe guaranties signed in both a representative and individual capacity as constituting a guaranty by the entity involved because to do so would render the guaranty a nullity. Parol evidence is not admissible to contradict unambiguous terms of a written agreement. Good consideration for a contract is any benefit conferred or detriment suffered.

A district court order denying application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

In post-conviction relief proceedings, it is not an abuse of discretion to deny default judgment when a petitioner cannot show he suffered any prejudice from the State's untimely response. A district court order summarily dismissing a post-conviction relief application is summarily affirmed under N.D.R.App.P. 35.1(a)(4), (6), and (7).

District court's judgment affirming a North Dakota Department of Transportation decision suspending driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

A criminal judgment finding defendant guilty of driving under the influence is summarily reversed under N.D.R.App.P. 35.1(b).

Appeal from an order denying a motion for new trial is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

An officer's actions remained within the community caretaker exception to the warrant requirement of the Fourth Amendment when he knocked on the car window of an individual who appeared to be sleeping with the car running in a gas station parking lot. An officer's actions remained within the community caretaker exception to the warrant requirement of the Fourth Amendment when entering an individual's vehicle subsequent to the individual's failure to respond to the officer's attempts to gain his attention outside the vehicle.

A district court's findings on valuation of property will not be reversed unless they are clearly erroneous. The application and appropriate amount of a minority discount and a lack-of-marketability discount are questions of fact. If those in control of a closely-held corporation have acted fraudulently, illegally, or in a manner prejudicial to the shareholders, a court may dissolve the corporation or grant any equitable relief it deems just and reasonable. Valuation of a partnership ownership interest should be determined as of the date of dissolution. A court has discretion under partnership and corporation laws to fashion equitable remedies for a breach of fiduciary duties. Appellate courts review the record and findings as a whole and if the controlling findings are supported by the evidence, they will be upheld on appeal notwithstanding immaterial misstatements in the lower court's decision. Unpled claims are not tried by the express or implied consent of the parties when the opposing party objects to the introduction of evidence relating to the unpled claim.

Although N.D. Admin. Code § 75-02-04.1-01(10) describes activities that are considered self-employment, the determination of a self-employed individual's income is governed by N.D. Admin. Code § 75-02-04.1-05. An obligor's W-2 wages received from his Subchapter S corporation are not self-employment income.

If a party bringing a motion under N.D.R.Ct. 3.2 timely requests oral argument, the request must be granted. If a party fails to request oral argument on a motion under N.D.R.Ct. 3.2, a district court has broad discretion to either require an evidentiary hearing or decide the motion on the basis of the parties' submissions.

Defendant failed to support his claim that a probable cause finding for a non-cognizable offense was obvious error. The amendment of an attempted murder charge, while an abuse of discretion, did not rise to the level of obvious error. Defendant failed to support his claim an error in the jury instructions was obvious error. Defendant failed to support his claim an error in the verdict form was obvious error. Defendant failed to support his claim that irregularities in the admonishments given to the jury during trial were obvious errors.

An award of attorney fees to a prevailing plaintiff under N.D.C.C. § 27-08.1-04 does not extend to parties who were not part of the original small claims court proceedings.

The district court did not abuse its discretion by admitting the recordings of an interrogation without playing the recordings in their entirety. The admission of recordings without playing them in open court does not violate a defendant's right to a public trial. The district court did not abuse its discretion by refusing to admit evidence of prior sexual encounters between the defendant and the alleged victim.

The district court's findings on the best interest factors, as well as its decision regarding primary residential responsibility, were not clearly erroneous. The district court may discuss separation of siblings as part of, or separate from, the best interest factors, as long as the court adequately explains its decision. The district court's sua sponte decision to change the minor child's last name was an abuse of discretion.

The right to an additional independent test under N.D.C.C. § 39-20-02 only arises when the driver submits to the chemical test requested by law enforcement. An on-site screening test under N.D.C.C. § 39-20-14(3) is not the same as a chemical test under N.D.C.C. § 39-20-01(1) and therefore a person is not an "individual tested" under N.D.C.C. § 39-20-02 by virtue of his submission to on-site screening tests. Likewise, a person is not statutorily entitled to an independent test of his choosing because he submitted to on-site screening tests since a test in addition to "any administered" under N.D.C.C. § 39-20-02 refers to any administered chemical tests.

A district court's use of a defense of property jury instruction did not improperly shift the burden of the State to disprove the absence of self-defense. A lesser included offense instruction may be requested by the prosecution or defense, or the court may give such an instruction. Evidence is sufficient if it allows the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction when viewed in the light most favorable to the verdict.

A police officer may take an apparently intoxicated individual to a jail for detoxification if the officer determines the person constitutes a danger to himself or others. The inevitable discovery doctrine establishes that evidence derived from information obtained in an unlawful search is not inadmissible under the fruit-of-the-poisonous-tree doctrine where it is shown that the evidence would have been gained even without the unlawful action.

The district court must find good cause to delay a trial more than ninety days after the defendant has been arraigned and timely elected a right to a speedy trial under N.D.C.C. § 29-19-02.

A party opposing a motion for summary judgment cannot simply rely on the pleadings or on unsupported allegations, but must present competent admissible evidence that raises a genuine issue of material fact in support of their claim. The mandate rule requires the trial court to follow pronouncements of an appellate court on legal issues in subsequent proceedings of the case and to carry the appellate court's mandate into effect according to its terms.

Accomplice to commit extreme indifference murder is a cognizable offense. District court's finding that petitioner's post-conviction claim failed to establish trial counsel's representation fell below an objective standard of reasonableness was not clearly erroneous. District court did not abuse its discretion in denying post-conviction petitioner's request to withdraw his guilty plea where petitioner failed to show a manifest injustice existed necessitating the withdrawal of his guilty plea.

The case is remanded for additional findings of fact on whether a person was likely to reoffend and had serious difficulty controlling behavior, as required to deny sex offender discharge from civil commitment as a sexually dangerous individual.

A district court's decision on whether to pierce a corporation's corporate veil is heavily fact-specific. Under N.D.R.Civ.P. 52(a)(1), in an action tried on the facts without a jury, a district court must find the facts specially to allow the reviewing court to adequately understand the basis of the district court's decision. Conclusory, general findings do not comply with N.D.R.Civ.P. 52(a), and a finding of fact that simply states a party has failed in or has sustained its burden of proof is inadequate under the rule.

The district court must state the specific factual findings used as a base for determining an individual has serious difficulty controlling personal behavior, and errs as a matter of law if the findings are insufficient or does not support the legal conclusion.

A party moving to terminate spousal support under N.D.C.C. § 14-05-24.1(3) has the initial burden to prove habitual cohabitation for a period of one year or more, and the party opposing the motion has the burden to prove any exceptions apply. A spousal support provision of a marital termination agreement entered into after N.D.C.C. § 14-05-24.1(3) became effective that does not include language stating spousal support will continue even if the receiving spouse cohabits does not preclude termination of spousal support under the statute. The district court has discretion in deciding when a spousal support obligation will terminate if the court finds the spouse receiving support is habitually cohabiting.

Parties may obtain discovery regarding nonprivileged matters that are relevant to a party's claim. The district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination.

The Department's driving record, including its notations, for a driver is a regularly kept record and is prima facie evidence of its contents. A hearing officer is not precluded from drawing inferences from the evidence presented based on common sense and experiences. A district court may award reasonable attorney fees and costs to a prevailing claimant when an administrative agency has acted without substantial justification.

For purpose of appeal, an order deferring imposition of sentence is equivalent to a judgment under N.D.R.Crim.P. 32(b). Under N.D.R.Crim.P. 32.1, a case is automatically dismissed sixty-one days after a defendant's probation has ended, unless the court has ordered otherwise before that date. A district court errs in modifying an order deferring imposition of sentence on the basis of an case automatically dismissed under N.D.R.Crim.P. 32.1 without further evidence.

Individuals convicted of specified offenses against children have a statutory duty to register as offenders against children regardless of a prior court order or instructions by a court to register.

A conviction rests upon insufficient evidence only when no rational fact finder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor. Claims for obvious error require an error that is plain and affects substantial rights, and the error must be a clear deviation from an applicable legal rule under current law.

Investigative detention may continue only as long as reasonably necessary to conduct duties resulting from a traffic stop and to issue a warning or citation. Whether reasonable suspicion exists is assessed by taking into account the totality of the circumstances and inferences and deductions that an investigating officer makes based on training and experience. Reasonable suspicion requires more than a "mere hunch" by law enforcement.

In a divorce action, a spouse's separate property, whether inherited or otherwise, must be included in the marital estate, and property brought into a marriage or acquired by gift or inheritance by one spouse may not be set aside to that spouse. In dividing the marital estate, it is appropriate for the district court to consider the parties' entire relationship when parties live together and then marry. In a divorce action, the district court may award attorney's fees when a party's actions have unreasonably increased the time spent on a case.

A motion for summary disposition on the pleadings in a post-conviction proceeding is analogous to a N.D.R.Civ.P. 12(b)(6) motion and looks at the application in the light most favorable to the applicant and accepts well-pleaded allegations as true. General allegations in a State's answer to a post-conviction application are insufficient to put the applicant to his proof on an ineffective assistance of counsel claim.

A district court does not abuse its discretion when in a criminal judgment it describes an inchoate crime by reference to both Chapter 12.1-06 and the statute specifying the underlying criminal offense.

For child support purposes, an obligor's income must be sufficiently documented through the use of tax returns, current wage statements, and other information. Self-employment income must be determined using the average of the most recent five years of self-employment activity if that information is available.

Conspiracy to commit a "knowing" murder is a non-cognizable offense. Because the defendant may have been convicted of a non-cognizable offense, the matter was remanded for a new trial.

The crime of conspiracy to "knowingly" commit murder is not a cognizable crime. Charging a defendant with such a crime is obvious error.

Information obtained from a 911 caller may provide a sufficient factual basis to raise a reasonable and articulable suspicion of potential criminal activity to justify an investigatory stop.

A district court's denial of a motion for new trial is reviewed for an abuse of discretion. A court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner its decision is not the product of a rational mental process leading to a reasoned determination or it misinterprets or misapplies the law. Unopposed jury instructions become the law of the case. A party on appeal cannot complain about error that is of their own making. A district court considering a new trial motion based on insufficiency of the evidence may not substitute its own judgment for that of the jury, or act as a thirteenth juror when the evidence is such that different persons would naturally and fairly come to different conclusions, but may set aside a jury verdict when, in considering and weighing all the evidence, the court's judgment tells it the verdict is wrong because it is manifestly against the weight of the evidence. Absent statutory or contractual authority, the American Rule assumes parties to a lawsuit bear their own attorney fees.

Although a district court judge has broad discretion when admitting or excluding expert witness testimony, it is an abuse of discretion to strike all of an expert witness's testimony sua sponte when some of the testimony is admissible.

Death does not make a resident absent from the state for six months or more post-accident for purposes of service under North Dakota's nonresident motorist statute, N.D.C.C. § 39-01-11.

A patient's suicide is an objectively obvious fact that the goal of psychological treatment for symptoms relating to anxiety and depression had not been reached as planned and is sufficient to put parents with knowledge that their child was receiving treatment on notice that a potential claim against the psychological treatment provider exists.

The district court did not err by failing to require the State to name a specific individual who was threatened to establish a prima facie case of terrorizing. The district court did not err by failing to require the State to name a specific individual who was threatened in jury instructions regarding the crime of terrorizing. The evidence was sufficient to support the defendant's conviction of terrorizing, and the court did not err in denying his motion for acquittal.

A chemical breath test was not "fairly administered" under N.D.C.C. § 39-20-07 because evidence failed to establish compliance with the approved method for conducting the test.

District court erred in its interpretation of an oil and gas lease. Gross proceeds from which royalty payments were calculated could not be reduced by an amount that either directly or indirectly accounted for post-production costs incurred to make the gas marketable.

Granting a mistrial is an extreme remedy and should only be resorted to when a fundamental defect or occurrence in the trial proceedings exists that makes it evident that further proceedings would be productive of manifest injustice. When a party discovers evidence of juror misconduct, the proper procedure is to cease investigation to reduce the possibility of juror taint from extraneous pressures and to notify the district court so it can conduct appropriate questioning.

The surviving spouse of a decedent may claim an elective share of the decedent's testate or intestate estate. The conveyance of homestead property must be executed and acknowledged by both husband and wife or it is void and ineffective.

A Stock Purchase Agreement submitted with the defendant's answer qualifies as a "record" of a transaction under N.D.C.C. § 10-04-06(11). The district court did not abuse its discretion in waiving issues with service related to an attorney's failure to designate himself as a service contact in North Dakota's electronic filing system, Odyssey. The district court did not abuse its discretion in not allowing the appellant to amend his petition when the appellant did not make a motion to amend, did not indicate what amendments he would propose, nor what the amended complaint would state. The district court did not err in determining it did not have subject matter jurisdiction over an issue not raised in the complaint.

Pain is a symptom and may be considered in determining whether there is a substantial acceleration or substantial worsening of a preexisting injury, disease, or other condition, but pain alone is not a substantial acceleration or substantial worsening. An administrative agency's findings must be adequate to enable a reviewing court to understand the agency's decision.

A motion to dismiss for failure to state a claim is based on pleadings, and if matters outside the pleadings are presented to and not excluded by the district court, motion must be treated as a motion for summary judgment. The district court erred in granting summary judgment when it made findings on the disputed fact of whether privity existed between parties.

Service of an administrative order under N.D.C.C. § 65-04-32(3) is not "service of process" requiring service under N.D.R.Civ.P. 4 because "process" is a term of art that applies differently to judicial proceedings and administrative proceedings. Without a finding by the trier of fact on a dispositive factual dispute relating to jurisdiction, we are unable to decide whether the hearing officer made proper conclusions of law.

A landowner may sell land subject to restrictive covenants so long as they are not contrary to public policy. Under the doctrine of equitable conversion, after parties execute a binding contract for the sale of land, equitable title vests in the purchaser and the seller holds legal title only as security for payment of the balance of the purchase price. The doctrine applies only where there is a valid contract for sale which could be specifically enforced. A waiver occurs when a person voluntarily and intentionally relinquishes a known right or privilege. The right to enforce a restriction or reservation may be lost by waiver. Under the doctrine of unconscionability, a court may deny enforcement of a contract because of procedural abuses arising out of the contract's formation and substantive abuses relating to the contract's terms.

Issues not raised in the district court cannot be raised for the first time on appeal unless they rise to the level of obvious error. In appeal of a probation revocation, Supreme Court reviews factual findings under clearly erroneous standard and reviews decision to revoke probation under abuse-of-discretion standard.

District court abused its discretion in denying newly appointed counsel's request to continue a sentencing hearing.

The elements of an abuse-of-process claim are an ulterior purpose and a willful act in the use of process not proper in the regular conduct of the proceeding. To maintain an action for malicious prosecution requires a plaintiff to show the action was brought with malice. The absence of a viable substantive claim precludes a separate claim for punitive damages.

Denial of the Sixth Amendment right to a public trial without having considered the Waller factors is a structural error. When examining the scope of closure of a trial, special awareness should be given to whether both the public and jury must be excluded, or only the jury, and the scope should be adjusted accordingly.

On a motion for summary judgment, a court may not weigh the evidence, determine credibility or attempt to discern the truth of the matter. Chapter 35-27, N.D.C.C., provides procedures for obtaining a construction lien on improvements to real property and for the enforcement of the lien.

To prevail on a motion for a new trial on the grounds of newly discovered evidence, a defendant must show: (1) the evidence was discovered after trial, (2) the failure to learn about the evidence at the time of trial was not the result of the defendant's lack of diligence, (3) the newly discovered evidence is material to the issues at trial, and (4) the weight and quality of the newly discovered evidence would likely result in an acquittal.

A district court has wide discretion to admit or exclude evidence at trial. Under the clearly erroneous standard of review, this Court does not reweigh the evidence or reassess the credibility of witnesses. A district court has discretion to award past child support and its decision to award past child support will not be reversed unless the court abuses its discretion.

New judgeship No. 10 in the South Centeral Judicial District is chambered in Mandan.

A lawyer is publicly reprimanded, ordered to pay partial costs of the disciplinary proceedings, and ordered to refund money to a client for violating N.D.R. Prof. Conduct 1.16(e). Fee agreement including both a contingent fee and a non-refundable fee is not per se unreasonable under N.D.R. Prof. Conduct 1.5(a). Rule 1.15(e), N.D.R. Prof. Conduct, requires a lawyer in possession of property in which two or more persons claim an interest to keep the disputed property separate until the dispute is resolved. The lawyer does not violate the Rule if there is no evidence he had possession of the property when he became aware of the dispute. A lawyer is required to refund any advanced payment of fees not earned.

Applicant alleging ineffective assistance of post-conviction counsel cannot circumvent the Uniform Postconviction Procedure Act's bar on challenging post-conviction counsel's representation by making his allegations in a motion rather than an application for post-conviction relief. A N.D.R.Civ.P. 60(b)(3) motion alleging fraud by prior post-conviction counsel is without merit because an attorney representing a party is not adverse to the party. Applicant for post-conviction relief is entitled to notice that his application may be summarily dismissed.

The admission into evidence of a witness's out-of-court testimonial statements does not violate the Confrontation Clause if a defendant has an opportunity to cross-examine a witness at trial. Rule 803(24), N.D.R.Ev., provides an exception to the rule against hearsay for a child's statement about sexual abuse, regardless of whether the declarant is available as a witness. A conviction will be reversed on appeal on the ground of insufficient evidence only if, after viewing the evidence and all reasonable inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.

Although a law enforcement officer's encounter with the occupant of a vehicle and indication that a K-9 unit would be called to "sniff" the vehicle was a seizure, the intrusion of the occupant's Fourth Amendment rights was warranted and scope of the intrusion was reasonably related to the circumstances which justified the intrusion.

The Court answers a certified question from the Federal Bankruptcy Court regarding the application of the homestead exemption as applied to property held in joint tenancy by debtor and nondebtor spouse.

The constitutionality of a statute is a question of law, and the statute will be upheld unless its challenger can demonstrate the statute's unconstitutionality. The doctrine of overbreadth prohibits a law from criminalizing constitutionally protected activity. A temporary restraining order, which may be issued ex parte without a hearing, is a species of injunction, typically brief in duration, that has as its purpose maintaining the status quo until a determination can be made on the temporary injunction issue. A conviction rests upon insufficient evidence only when no rational fact finder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor.

Courts must construe statutes to give meaning to them in their entirety if possible. A functional capacity evaluation is "valid" for purposes of N.D.C.C. § 65-05.1-01(6) if the employee gives a maximum consistent effort during the examination.

A district court has broad discretion to impose sanctions for discovery abuses, including striking pleadings or dismissing claims. The district court has inherent authority to award attorney's fees as a sanction for a litigant's misconduct. The district court's valuation of a partnership that is within the range of evidence presented to the court is not clearly erroneous.

For a defendant to qualify as a dangerous special offender, the prior and current offenses must be similar. To determine whether two offenses are similar, the court must compare the elements of the two statutes and may also compare the conduct underlying the two offenses. If neither the elements nor the facts of the prior offense are similar to those of the current offense, the defendant does not qualify as a dangerous special offender.

Whether a petitioner received ineffective assistance of counsel is a mixed question of law and fact and is fully reviewable on appeal. Under N.D.R.Civ.P. 52(a), the district court's findings of fact will not be disturbed on appeal unless clearly erroneous. To show prejudice for ineffective assistance of counsel in a direct appeal, there must be a reasonable probability the appellate counsel's errors changed the result of the direct appeal. Absent specific instructions, a district court deciding an issue on remand must exercise its discretion when determining the procedure to follow. A district court's decision whether to take additional evidence will be reversed only if the court abused its discretion.

A completed deferred imposition of sentence that has resulted in dismissal of the charge involving a prior conviction under N.D.C.C. title 19-03.4 can not be used to enhance a subsequent charge of unlawful possession of drug paraphernalia.

Oil and gas leases are interpreted as a whole to give effect to every part if reasonably practicable. A force majeure clause in a contract allocates the risk of loss if performance becomes impossible or impracticable as a result of an event or effect that the parties could not have anticipated or controlled. A party relying on an express force majeure clause in a contract must provide proof that the failure to perform was proximately caused by a contingency and that, in spite of the party's skill, diligence, and good faith, performance remains impossible or unreasonably expensive.

When the dismissal of a criminal count or entire complaint is silent whether it is with or without prejudice, it is ambiguous and examination of the parties and the district court's intent is required.

In an appeal from a bench trial, the district court's findings of fact are reviewed under the clearly erroneous standard of review, and its conclusions of law are fully reviewable. To satisfy the elements for adverse possession, the acts on which the claimant relies must be actual, visible, continuous, notorious, distinct, and hostile, and of such character to unmistakably indicate an assertion of claim of exclusive ownership by the occupant. While adverse possession generally cannot be obtained against a public entity, title may be acquired by adverse possession when a roadway has been unopened to public use, an offer to dedicate it has been unaccepted, or it has been vacated or abandoned. Whether an adverse possession has occurred presents a question of fact, which will not be reversed on appeal unless clearly erroneous.

Without a valid request for testing, including a valid advisory, there can be no refusal to submit to testing under N.D.C.C. §§ 39-20-01(3)(a) or 39-08-01(2).

For public policy reasons, there is no third-party duty owed by a physician to warn a patient of the danger of driving with a latent condition. A purely economic claim against a physician based on indemnity for medical malpractice is assignable from a patient to a third party who was injured as a result of the malpractice. Under N.D.C.C. § 28-01-46, an affidavit has a low threshold to meet the requirements.

Orders terminating father's parental rights are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

A defendant seeking post-conviction relief cannot circumvent the Uniform Postconviction Procedure Act by designating his application for post-conviction relief as a motion under a rule of criminal procedure or by filing his motion in his criminal file, rather than filing an application for post-conviction relief. Applicant for post-conviction relief is entitled to notice that his application may be summarily dismissed.

A district court order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A defendant's failure to object at trial to character evidence or evidence of alleged prior bad acts under N.D.R.Ev. 404 forfeits the claim of error. The district court does not err by failing to give the jury an instruction limiting the use of character evidence or evidence of prior bad acts if neither party requests an instruction and the defendant does not object to the evidence at trial.

A district court may revise any non-final order before entry of a final judgment and has discretion to extend deadlines in its scheduling order before trial. Once a claimant is allowed to participate in the workers' compensation fund, he or she may no longer elect to bring a lawsuit against the employer. The word "must" in a statute normally indicates a mandatory duty.

The criminal judgment entered after a jury verdict is summarily affirmed under N.D.R.App.P. 35.1(a)(3). Sufficient evidence exists that could allow a jury to draw a reasonable inference in favor of conviction of manslaughter.

The order denying post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Whether there was delivery of a deed is a question of fact. A grantee's possession of a deed raises a presumption that the grantor intended delivery of the deed. The evidence to overcome the presumption of delivery must be clear and convincing.

A district court summary judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

District court judgment affirmed under N.D.R.App.P. 35.1(a)(1), (2), and (4).

When a party moves for a mistrial because of an unavailable witness who already testified and neither party is at fault, the movant must make an offer of proof to provide a record of what additional testimony the witness would provide and why the additional testimony is material.

Orders terminating mother, father, and John Doe's parental rights are summarily affirmed under N.D.R.App.P. 35.1(a)(2),(4), and (7).

N.D.C.C. § 59-10.1-03(1) requires receipt of the notice, proven through the presumption or otherwise, to begin the 120 day limitation period. The presumption under N.D.C.C. § 59-10.1-03(1) is rebuttable. It was an abuse of discretion for a district court to deny time for additional discovery under N.D.R.Civ.P. 56(f) when the motion for summary judgment was filed within four days of the service of the complaint and the motion for summary judgment was resolved as the result of a material fact established through a presumption.

An action brought in small claims court is subject to the doctrine of res judicata. A small claims court's judgment cannot be appealed in district court. Unless requested by a party, oral argument on a motion under N.D.R.Ct. 3.2 is not required.

District court criminal judgment summarily affirmed under N.D.R.App.P. 35.1(a)(3).

A district court's domestic violence protection order is affirmed.

A lienholder who recovers in a suit upon a bond is entitled to recover a reasonable attorney's fee for the proceedings before the district court and for a successful appeal.

A district court order denying discharge from civil commitment as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

The State may not appeal from an in limine order excluding evidence based on the physician-patient privilege under N.D.R.Ev. 503. Supervisory writs are rarely issued and only to rectify errors and prevent injustice in extraordinary cases when no adequate alternative remedy exists.

Juvenile court findings of delinquency for fleeing or attempting to elude a peace officer and reckless driving are not clearly erroneous and are affirmed. A juvenile court finding of delinquency for criminal trespass is reversed due to insufficient evidence.

The question of law certified by a North Dakota district court is not answered because it is not dispositive of the case. The North Dakota Supreme Court exercises supervisory jurisdiction to reverse the district court's order finding a 16 and 17 year old married person was not a "child" under N.D.C.C. § 27-20-02(4)(b) when the offenses allegedly were committed. Reversed and remanded with directions to vacate the judgment and dismiss the case for lack of subject matter jurisdiction.

A holographic will is valid if the signature and material portions of the document are in the testator's handwriting. The law presumes a missing will has been revoked by the testator. To overcome the presumption, the party petitioning for the probate of a missing will must demonstrate, by a preponderance of the evidence, that the will existed at the time of the testator's death, that the will was fraudulently destroyed in the lifetime of the testator, or that other evidence shows the testator did not intend to revoke the missing will.

When a committed individual petitions for discharge from commitment as a sexually dangerous individual, the State must prove the individual remains a sexually dangerous individual by clear and convincing evidence. The district court must find the committed individual has serious difficulty controlling his behavior to continue that person's commitment as a sexually dangerous individual.

To support a claim of insufficient evidence to support a conviction, the defendant bears the burden of showing the evidence, when viewed in the light most favorable to the verdict, reveals no reasonable inference of guilt. The law of the case doctrine and the scope of the parties' appeal define the parameters of the Supreme Court's review. There is no obvious error when a rule of law is not clearly established.

The criminal judgment entered after a jury verdict is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Real property can be gifted to a minor if there is an intention by the donor to then and there give the 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. The doctrine of res judicata does not bar claims to quiet title for different parcels of land, but collateral estoppel may bar the relitigation of issues previously litigated in prior quiet title actions.

Under N.D.R.Ev. 201(b)(2), a court may judicially notice a fact that is not subject to reasonable dispute because it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Section 14-09-22, N.D.C.C., is not unconstitutionally vague.

A district court must find a sexually dangerous individual continues to have an inability to control his behavior. Past conduct is relevant and may be taken into account with present conduct to determine if an individual continues to have an inability to control his behavior. Inappropriate behavior not deemed actual misconduct requiring a formal sanction may be considered in determining an inability to control behavior. Conduct showing more than just a lack of progress, but a lack of participation, is sufficient to show an individual continues to have an inability to control his behavior.

The criminal judgment entered after a jury verdict is summarily affirmed under N.D.R.App.P. 35.1(a)(3),(4).

A criminal judgment entered after a jury verdict is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

A district court judgment is affirmed under N.D.R.App.P. 35.1(a)(7).

The two year statute of limitations for malpractice claims begins to run when the client discovers his attorney's negligence and suffers some damage. The trial court did not abuse its discretion by awarding fees, under N.D.C.C. § 28-26-06(5), for expert witnesses who were unnecessary to resolve a motion for summary judgment when the completion of fact discovery and the disclosure of expert witnesses was required prior to the summary judgment motion deadline.

The order denying post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

The district court's judgment modifying parenting time is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

A district court's order revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Order terminating father's parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Delivery is not accomplished at the time of mailing the summons and complaint to the sheriff's department under N.D.C.C. § 28-01-38. An attempt to commence an action is not the equivalent to commencement when the summons is not delivered to the sheriff within the statute of limitations.

A district court may extend an offenders' sentence if the offender is found to be a habitual offender under N.D.C.C. § 12.1-32-09. Section 12.1-32-02(9), N.D.C.C., does not apply to an offender's out of state felony convictions for purposes of determining if the offender is a habitual offender. Section 12.1-32-09, N.D.C.C., specifically refers to convictions in another state and defines a felony in another state as one that is punishable by a maximum term of imprisonment of five years or more, regardless of the actual punishment imposed.

A district court's judgment denying a motion to modify parenting time and a motion to modify primary residential responsibility is affirmed.

An Alford plea does not preserve non-jurisdictional claims for appeal.

A district court's order denying a petition for discharge from commitment as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A district court did not abuse its discretion in denying a motion to withdraw a guilty plea.

A district court's award of primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. A district court's decision on a motion for new trial or relief from judgment will not be reversed on appeal unless the district court abused its discretion. A district court need not make findings of fact regarding financial need or ability to pay when ordering attorney's fees as a sanction.

Where the legislature has deferred to an administrative agency's expertise to develop rules, and has declined to provide clear direction on the substance of the rules to be developed, the "purely legal question" exception to the exhaustion of administrative remedies does not apply.

A district court judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

A district court summary judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (6) and (7).

A district court did not violate the defendant's due process rights or abuse its discretion in overruling the defendant's objection and denying the motion for mistrial concerning the State's anecdote during closing argument.

A district court is authorized to revoke probation for a violation prior to expiration or termination of probation under N.D.C.C. § 12.1-32-07(6). A court has discretion in sentencing and need not explicitly reference the statutory sentence factors when fixing a sentence. Section 12.1-32-07(6), N.D.C.C., permits a district court to impose any sentence available at the initial time of sentencing upon revocation of probation. Issues not raised in the district court cannot generally be raised for the first time on appeal, absent obvious error.

An order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2),(4).

Flood control projects are a public use for eminent domain purposes. In the absence of bad faith, gross abuse of discretion, or fraud by the condemning authority in its determination that the property sought is necessary for the authorized use and is pursuant to specific statutory authority, such determination should not be disturbed by the courts. The question of greater necessity is for a court to resolve. When no statutory remedy is provided for a statutory violation, the court looks to whether the victim of the violation was prejudiced because absent a showing of prejudice, a statutory violation is not reversible error.

A driver's limited post-arrest statutory right to counsel does not apply prior to arrest, and the holding in Kuntz v. State Highway Commissioner, 405 N.W.2d 285 (N.D. 1987) is not extended to N.D.C.C. § 39-20-14.

Res judicata principles prohibit the review of arguments raised in earlier appeals. This Court will not consider an argument that is not adequately articulated, supported, and briefed.

When both N.D.C.C. § 12.1-32-09.1 and N.D.C.C. § 12.1-32-01(1) apply to a defendant's sentence, the defendant is not eligible for parole until eighty-five percent of the sentence has been served or thirty years after admission to the penitentiary, whichever is greater.

A district court was not clearly erroneous in denying the application for post-conviction relief.

A district court did not abuse its discretion when it ordered restitution against a defendant who pled guilty to theft for possession of a stolen motorcycle, and that motorcycle was returned damaged to the victim.

A reasoning mind could have reasonably found a report and notice was forwarded to the Department within five days of the issuance of the temporary operator's permit as required by law. The hearing officer's decision to suspend the appellant's license for 180 days is affirmed.

A reasoning mind could reasonably determine the claimant was unable to work and earn as much as he earned at the time of his injury and the claimant suffered low back pain that was attributable to the compensable work injury after November 11, 2016.

A judgment debtor who pays more than his or her proportionate share of a judgment may take an assignment of the judgment for the purpose of enforcing contribution against co-debtors.

When a lessor sells property that is subject to an unfulfilled lease, the buyer takes the property subject to the terms of the lease. A lease is an agreement under which the owner gives up possession and use of property for valuable consideration and for a definite term and at the end of the term the owner has the absolute right to retake, control, and use the property. Conversion is the tortious detention or destruction of personal property, or a wrongful exercise of dominion or control over the property inconsistent with or in defiance of the rights of the owner. The detriment caused by the wrongful conversion of personal property includes fair compensation for the time and money properly expended in pursuit of the property.

Whether a petitioner received?ineffective?assistance?of counsel is a mixed question of law and fact and is fully reviewable on appeal. The district court's findings of fact will not be disturbed on appeal unless clearly erroneous. A district court's findings supporting the denial of appellant's application for post-conviction relief were not clearly erroneous.

Statutes are generally not retroactive unless the legislature expressly declares so. The law in effect when court proceedings occurred and the district court issued its decision is controlling.

Section 14-09-06.2(1)(j), N.D.C.C, creates a rebuttable presumption against awarding custody of a child to a perpetrator of domestic violence if certain criteria is met. A district court is not bound to accept stipulations regarding custody and care of children if it finds the stipulations are not in the best interests of the child. A district court's findings and conclusions regarding the presumption and stipulations should be sufficiently detailed to allow this Court to understand the basis for its decision.

Warrantless discovery of evidence in a defendant's home is justified under the emergency exception to the warrant requirement if entry was actually motivated by a perceived need to render aid or assistance. An objective standard of reasonableness is used in determining whether law enforcement had reasonable grounds to believe there was an emergency at hand and an immediate need for their assistance for the protection of life or property. Plain view is a recognized exception to the warrant requirement, allowing law enforcement officers to seize a clearly incriminating object without a warrant if the officers are lawfully in a position from which they can view an object and the object's incriminating character is immediately apparent.

A district court has discretion in deciding whether to grant a new trial under N.D.R.Civ.P. 59. When a party moves for a new trial under N.D.R.Civ.P. 59, the party is limited on appeal to review of those issues raised in the motion for a new trial. A district court's decision awarding primary residential responsibility for children will not be reversed on appeal unless it is clearly erroneous, and the appellate court will not reweigh the evidence or retry the case. The district court must equitably distribute the parties' assets and debts in a divorce action. A party is entitled to a hearing on a motion for contempt under N.D.C.C. § 27-10-01.3, but the party is required to comply with the procedural requirements of N.D.R.Ct. 3.2 to request a hearing.

The evidence does not support the conclusion that the civilly committed resident remains a sexually dangerous individual and is clearly erroneous. The order denying the petition for discharge is reversed.

District court orders denying a motion for an extension, denying a motion to amend the parenting plan and child support, and denying a motion for relief from order and new trial are summarily affirmed under N.D.R.App.P. 35.1(a)(2),(4).

The district court must state the specific factual findings used in determining an individual is likely to reoffend and has serious difficulty controlling personal behavior and errs as a matter of law if the findings are insufficient or do not support the legal conclusion.

In a collateral attack of a federal district court's final judgment in a class action, review is limited to an examination of procedural due process. The court must determine (1) whether there were safeguards in place to guarantee sufficient notice and adequate representation and (2) whether such safeguards were, in fact, applied.