Slip opinions decided 2021 — North Dakota Reports

An order compelling arbitration and dismissing the action is appealable. A party's claim that they lacked the capacity to contract, which challenges the existence of the contract, must be decided by the court before arbitration can be ordered under an arbitration provision contained in the contract.

Under North Dakota law no public policy exception to the at-will employment doctrine exists for law enforcement officers who act in self-defense.

On review of an administrative law judge's findings of fact, this Court determines only whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record. Section 65-06-26.2(1), N.D.C.C., allows for the imposition of derivative liability against a general contractor without proof the underling assessment of liability against the subcontractor is final. Usage of the wage cap in effect per employee reported in the previous payroll report to calculate the amount of the late premiums is permitted under N.D.C.C. § 65-04-19. Section 28-32-42(1), N.D.C.C., sets the times for appeal for both parties as thirty days from the date of the administrative decision if no petition for reconsideration is timely filed, thirty days after a decision on a petition for reconsideration if a petition is timely filed, or thirty days after the timely filing of a petition for reconsideration if no decision has been issued on the petition.

When a defendant fails to object to the introduction of prior convictions at sentencing, and the court did not substantially rely on the convictions as the basis for enhancing a defendant's sentence or increasing their offense level, obvious error is the appropriate standard of review. A defendant cannot establish obvious error if they cannot first establish that an error has occurred.

The district court did not abuse its discretion when it denied an untimely motion to amend the complaint. An award of attorney fees under N.D.C.C. § 25-01.2-17 requires the successful enforcement of a right guaranteed by the Developmental Disability Act. The tort of intentional infliction of emotional stress requires a reasonable finding of extreme and outrageous conduct that goes beyond all possible bounds of decency, which is a strenuously high standard. Issues that are moot will generally not be addressed on appeal.

The primary purpose in interpreting a deed is to ascertain and effectuate the grantor's intent at the time of the conveyance. The intent must be ascertained from the writing alone, if possible. Gravel and other surface minerals are transferred with the surface estate unless specifically reserved by name in the conveyance.

A defendant may not challenge a jury verdict as inconsistent based upon an alleged error he invited by requesting an instruction on a lesser included offense. If a defendant does not object to the introduction of prior convictions at sentencing, and the prior convictions were not relied upon to enhance the term of incarceration, the appropriate standard of review is obvious error. It is not error to consider a defendant's prior convictions as a part of their criminal history under N.D.C.C. § 12.1-32-04 if there has been no showing that the prior convictions were uncounseled and without proper waiver.

A violation of the Sixth Amendment right to counsel does not occur unless the government knowingly intrudes into the attorney-client relationship and the intrusion prejudices the defendant or creates a substantial threat of prejudice.??? A correctional facility's policy of allowing inmates or their attorneys to register attorney telephone numbers as confidential numbers not to be monitored does not constitute a violation of N.D.C.C. § 12-44.1-14(1), which requires correctional facilities to provide inmates confidential access to their attorneys.

Criminal conviction for murder and child abuse is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

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

A district court's decision on a motion to suppress will be affirmed if there is sufficient competent evidence fairly capable of supporting the trial court's findings and the decision is not contrary to the manifest weight of the evidence. An investigative detention must be reasonably related in scope to the circumstances which justified the interference in the first place. The State must establish that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.

All contracts entered into by the parties must be construed together, and only the provisions in the latter contracts which are inconsistent with the prior contracts will supersede. This Court has recognized the doctrine of frustration of purpose may be used to avoid all or part of a contractual claim. The doctrine of frustration of purpose is applicable when after a contract is made, a party's principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made.

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

An order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

District court judgment finding children are deprived is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

The criminal judgment entered after a jury verdict is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

A district court's use, on remand, of its previous Ruff-Fischer guidelines analysis is not by itself clearly erroneous. The district court must provide a discernable basis for an award of spousal support.

During trial, a party can make a motion for judgment as a matter of law alleging insufficient evidence under N.D.R.Civ.P. 50(a). However, after the jury returns its verdict the party must renew the motion under N.D.R.Civ.P. 50(b) to preserve the sufficiency of the evidence issue for review on appeal. After removing a small claims court action to district court, amending the complaint does not preclude an award of attorney's fees under N.D.C.C. § 27-08.1-04. A court does not abuse its discretion when it uses an itemized bill to award a party attorney's fees under N.D.C.C. § 27-08.1-04. Under N.D.C.C. § 27-08.1-04, a prevailing plaintiff should be awarded reasonable attorney's fees for the district court proceedings and for a successful appeal.

Civil commitment decisions require detailed findings, including credibility determinations and references to evidence the court relied on in making its decision. Conclusory, general findings do not comply with N.D.R.Civ.P. 52(a).

A district court has jurisdiction to amend a criminal judgment to include restitution when the State files the motion to amend within the time limit imposed by the court during sentencing. When a defendant and the State enter into a plea agreement in which the prosecuting attorney agrees to recommend a particular sentence, that agreement does not resolve restitution and a restitution hearing must be held.

In an informal, unsupervised probate, an order settling all claims of one claimant is final, even if there are pending claims by other claimants. This Court does not consider questions not presented to the trial court nor arguments inadequately articulated, supported, and briefed.

Failure to provide a non-moving party the allotted time to respond under N.D.R.Ct. 3.2(a)(2) is a misapplication of law. Judgment may be overturned under Rule 60(b) where a motion is promptly made, the grounds of the motion satisfy the requirements of Rule 60(b), and an answer that appears to assert a meritorious defense is presented.

If a motion for judgment of acquittal was made at trial on specified grounds, and those grounds did not include the claim on appeal, the defendant does not preserve that issue for this Court's review. The existence of an arrest warrant does not convert a noncustodial situation into a custodial one.

To facilitate compliance with statutory requirements and the foundational element requiring a test be fairly administered, the state toxicologist has established approved methods for administering chemical breath tests. The approved method for the Intoxilyzer 8000 requires that the device must be installed by a field inspector prior to use.

Once the State has responded to a petition for post-conviction relief, sua sponte summary disposition by the court is no longer available, and the State is required to move for summary disposition. A petitioner is entitled to a fourteen-day window to respond to a request for dismissal of their petition for post-conviction relief.

A township's decision on a petition for approval of a proposed site for an animal feeding operation may be reversed on appeal if the township misinterprets or misapplies the law. Under N.D.C.C. § 58-03-11.1, townships only have authority to regulate the setback distance between an animal feeding operation and the nearest residence, building used for nonfarming or nonranching purposes, or land zoned for residential, commercial, or recreational purposes.

The test we apply when determining governmental liability and discretionary acts distinguishes between immune discretionary acts and non-immune ministerial acts. In examining the nature of the challenged conduct, the first inquiry a court must consider is whether the action is a matter of choice for the acting employee. Even if 'the challenged conduct involves an element of judgment or choice, the second inquiry a court must consider is whether that judgment or choice is of the kind that the discretionary function exception was designed to shield.

A district court's decision on whether to vacate a divorce judgment under N.D.R.Civ.P. 60(b) will not be overturned on appeal absent an abuse of discretion. A party seeking to vacate a divorce judgment entered pursuant to a settlement agreement under N.D.R.Civ.P. 60(b) must demonstrate extraordinary circumstances justifying relief. When considering whether a divorce judgment based on a settlement agreement should be vacated, the district court should inquire: (1) whether the agreement is free from mistake, duress, menace, fraud, or undue influence and (2) whether the agreement is unconscionable. The party seeking relief from judgment based on fraud has the burden to establish fraud by clear and convincing evidence. Unconscionability may be considered as a ground for relief under N.D.R.Civ.P. 60(b)(6). To vacate a divorce judgment as unconscionable, there must be a showing of both procedural and substantive unconscionability. A disparate settlement is not necessarily substantively unconscionable, particularly in a short-term marriage

In a court trial, any error in admitting a deposition is harmless unless the deposition testimony induced the court to make an essential finding which would not otherwise have been made or otherwise affected a party's substantial rights. A district court's property valuation in a divorce case is not clearly erroneous if it is within the range of evidence presented. An award of attorney's fees must generally be supported by evidence upon which the court can determine whether the requested fees are reasonable and legitimate.

If an applicant files a N.D.R.Civ.P. 60(b) motion for relief following an order denying post-conviction relief, the motion will be treated as another post-conviction relief application and will not toll the time for appealing the order denying post-conviction relief. An applicant for post-conviction relief may not allege ineffective assistance of post-conviction counsel.

An appearance for purposes of N.D.R.Civ.P. 55(a) is any response sufficient to give the plaintiff or his or her attorney notice of an intent to contest the claim. A party's disregard of service of process does not constitute mistake, inadvertence, or excusable neglect under N.D.R.Civ.P. 60(b)(1).

Tribal sovereign immunity protects Indian tribes against lawsuits, even ones brought by the State. Extension of tribal sovereign immunity to businesses relies on a test to determine if they qualify as arms of the tribe. A manager or governor of a limited liability company cannot be held liable under N.D.C.C. § 65-04-26.1(1) for unpaid premiums and reimbursements when the limited liability company itself is not liable for the amounts. Workforce Safety and Insurance has no statutory authority to order an insurance company cease and desist from writing coverage in North Dakota.

In a post-conviction relief proceeding, a petitioner is entitled to a fourteen-day window to respond to a request for dismissal of their petition for post-conviction relief.

Claimants must prove by a preponderance of evidence that they have sustained a compensable injury and are entitled to workers' compensation benefits. A claimant must prove that the condition for which benefits are sought is "causally related" to a work injury. To establish a "causal connection," a claimant must demonstrate the claimant's employment was a substantial contributing factor to the injury and need not show employment was the sole cause of the injury. A compensable injury must be established by medical evidence supported by objective medical findings, which may include a physician's medical opinion based on an examination, a patient's medical history, and the physician's education and experience.

An appeal from a juvenile court order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

A district court order denying a petition for writ of prohibition is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

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. A party alleging fraud must state with particularity the circumstances constituting fraud.

An order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

The judgment of the district court is summarily affirm as not clearly erroneous. Under Rule 30 of the North Dakota Rules of Appellate Procedure, attorney's fees and costs on appeal are appropriate only if the claim is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which could be seen as evidence of bad faith.

A defendant waives the constitutional protection against being placed in double jeopardy after a verdict or judgment against them is set aside at their own instance, either by motion in trial court or upon successful appeal. The circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial. When the length of delay in bringing a defendant to trial is not sufficiently long to be presumptively prejudicial, a speedy trial claim fails at this threshold inquiry. Defendant who pleaded "not guilty" was not entitled to a jury instruction and special verdict form which challenged whether a plea of "once in jeopardy" applied.

Whether a vehicle has been furnished for regular use is a conclusion of fact. A finding of fact will not be overturned on appeal unless clearly erroneous. Reasonable time and place restrictions on the use of a vehicle could lead to a conclusion the vehicle was not furnished for a person's regular use.

Once a judgment is final, the district court generally loses jurisdiction to alter, amend, or modify that judgment. Unless grounds are provided by statute or by the Rules of Criminal Procedure for correcting or amending a judgment, any attempt by the district court to amend or modify a final judgment is void. Any party who has timely served and filed a brief requests oral argument, the request must be granted. If a trial court errs in denying a party's motion without oral argument, the remedy is a remand to allow for oral argument.

Attempted promotion of obscenity to minors is not a cognizable offense.

Standing is the concept used to determine whether a party is sufficiently affected to ensure a justiciable controversy exists. The law of the case doctrine precludes parties from relitigating issues resolved in a prior appeal or issues that would have been resolved had they been properly presented. Collateral estoppel, or issue preclusion, forecloses relitigation of issues that were decided in a prior action or by necessary implication must have been litigated and decided. When the district court's rationale is unclear, remand is appropriate. Slander of title requires evidence that the defendant acted with malice. Conversion and unjust enrichment are distinct causes of action.

Under N.D.C.C. § 14-05-24.1(1), an award of spousal support must be for "a limited period of time." An award of spousal support "until death or remarriage" does not comply with N.D.C.C. § 14-05-24.1(1) because it is indefinite and lacks a fixed duration.

A juvenile court's findings of continued deprivation and orders keeping two children in the custody of Three Rivers Human Service Zone are summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A district court's continuing treatment order is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

The district court did not abuse its discretion by not dismissing the case for failure to timely produce discovery materials.

Juvenile court order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

A district court's criminal judgment following a jury verdict is summarily affirmed under N.D.R.App.P 35.1(a)(3).

An ordinance is not in conflict with a statute where it does not allow that which the statute expressly prohibits. Jamestown Municipal Code § 21-04-06 is not in direct conflict with N.D.C.C. § 39-08-01. A person is seized within the meaning of the Fourth Amendment of the United States Constitution only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave. Under the Fourth Amendment of the United States Constitution, an officer may, in appropriate circumstances and in an appropriate manner, detain an individual for investigative purposes when there is no probable cause to make an arrest if a reasonable and articulable suspicion exists that criminal activity is afoot.

Summary judgment is appropriate where there is no dispute as to the material facts or the inferences to be drawn from the undisputed facts, or whenever only a question of law is involved. A party resisting summary judgment cannot rely only on the pleadings, but must present competent admissible evidence raising an issue of material fact. A district court's award of attorney's fees will not be reversed absent an abuse of discretion.

A court must accept as true the well-pleaded allegations in the complaint for purposes of a motion to dismiss under N.D.R.Civ.P. 12(b)(6).

When a district court answers a jury's question on a point of law, it is further instructing the jury. No law requires a district court to give a jury an instruction on the authority to place property in a trust under N.D.C.C. § 30.1-29-09. Under N.D.R.Civ.P. 59(g), conformance to the evidence and the district court's instructions negates any assertion that the verdict was rendered under passion or prejudice. An inadequate jury award provides a basis for a new trial when it is without support in the evidence.

A party may waive a personal jurisdiction argument by voluntarily submitting to the personal jurisdiction of the court. A continuance is the proper remedy for a party claiming unfair surprise. Before a restraining order may be granted, the petitioner must prove their petition through testimony, rather than by affidavits alone, with an opportunity for cross-examination.

The termination of a guardianship in one case does not create a factual presumption that a guardianship in a related case should be terminated. Under N.D.C.C. § 27-20.1-16(3)(c), a petitioner must show by clear and convincing evidence that the circumstances that led to the guardianship no longer exist. A juvenile court does not need to find exceptional circumstances to extend a guardianship. Under N.D.C.C. § 27-20.1-17(1), a juvenile court does not need to use the words "good cause" to make a finding rising to the level of good cause.

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

A district court order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Concerns about officer safety may justify a pat down search for weapons, but a subsequent pocket search must be justified as independently reasonable because they are distinct efforts. A pat down may justify a pocket search when an officer's tactile perceptions lead to the conclusion the subject possesses a weapon or it is clear from the plain feel the object felt during the pat down is contraband. The odor of marijuana alone is not sufficient to establish probable cause to search a passenger in a vehicle, but it is a factor that may contribute to a finding of probable cause to conduct a warrantless search under the totality of the circumstances.

A district court's decision to grant an extension or a continuance for good cause will not be reversed on appeal unless the court abused its discretion.

In a wrongful death action, a plaintiff is entitled to damages for injuries resulting from the death. Damages resulting from negligence preceding the death is not compensable under N.D.C.C. §§ 32-21-02 or 32-03.2-04. At trial, relevant evidence is admissible, and irrelevant evidence is not admissible. Because the defendant admitted liability for the plaintiff's damages, evidence of the defendant's intoxication is not relevant in determining compensatory damages. If a party fails to object to a jury instruction, this Court's review is limited to whether a plain error exists in the instructions affecting substantial rights. Punitive damages may be awarded against a defendant whose conduct is oppressive, fraudulent, or malicious. To support a punitive damages claim, the plaintiff must present sufficient evidence to support a finding that a preponderance of the evidence demonstrates conduct with a state of mind evincing an intent to harm or injure another person.

The following royalty provision in an oil and gas lease unambiguously establishes a royalty valuation point at the well: Lessee covenants and agrees: To deliver to the credit of the lessor, free of cost, in the pipeline to which lessee may connect wells on said land, the equal [fractional] part of all oil produced and saved from the leased premises.

The condition that the court may order community placement only when the executive director files a petition requesting it satisfies procedural due process and does not violate the separation of powers doctrine.

A district court order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Appeal dismissed in supervised administration of a trust due to lack of a final order or judgment, or a N.D.R.Civ.P. P. 54(b) certification.

If the obligation a lien secures is satisfied, the lien is extinguished and no longer valid. An award of attorney fees and costs under N.D.C.C. § 35-24-19 requires a favorable judgment in an action brought to enforce a lien pursuant to N.D.C.C. ch. 35-24. A claim for enforcement of a statutory lien and an underlying breach of contract claim are separate and distinct.

An amended divorce judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Section 65-01-02(11)(a)(3), N.D.C.C., requires claimants to prove a compensable heart-related injury by showing with reasonable medical certainty their employment caused the injury and unusual stress was at least 50% of the cause of the injury. Objective medical evidence may not be established solely by deductive reasoning.

The principle of law of the case requires that the same legal question previously determined on appeal will not be decided differently on a second appeal in the same case where the facts remain the same. A district court's findings of fact on unjust enrichment will not be reversed unless clearly erroneous. A third party's participation in a transaction between others through which a benefit is obtained is a fact to be considered by the court in determining whether a causal connection existed between an enrichment and impoverishment. Unjust enrichment is an alternative claim, and a legal claim which has yet to fail or succeed does not preclude a plaintiff from also asserting an unjust enrichment claim. A district court does not abuse its discretion in awarding costs for depositions taken in a prior case where use of those depositions prevented duplicative depositions and costs.

A N.D.R.Civ.P. 54(b) certification of judgment may be appropriate if the certified judgment completely decides an entire claim. Summary judgment is only appropriate if the nonmoving party has had a full opportunity to conduct discovery to develop information essential to its position. A good faith purchaser must acquire rights without actual or constructive notice of another's rights.

An order dismissing a complaint, information, indictment, or any count thereof, with or without prejudice, is appealable under N.D.C.C. § 29-28-07(1). Timing may be used as evidence of a link between a defendant and an act.

An order deferring imposition of sentence entered after a jury verdict is affirmed under N.D.R.App.P. 35.1(a)(3).

Only judgments and decrees which constitute a final judgment of the rights of the parties and certain orders enumerated by statute are appealable. Under N.D.R.Ct. 3.2(a)(3), a court may decide routine motions on briefs without holding a formal hearing, unless a party requests one. An estate in real property, other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law or by an instrument in writing, subscribed by the party disposing of the same or by the party's agent thereunto authorized by writing. Under N.D.R.Civ.P. 12(f), the district court has discretion to strike an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter in a pleading. A court's award of attorney's fees and costs under N.D.C.C. § 28-26-31 is discretionary but must be based on evidence that the pleadings were made without reasonable cause and not in good faith, and are found to be untrue.

Under the law of the case doctrine, a party cannot in a second appeal relitigate issues which were resolved in the first appeal or which would have been resolved had they been properly presented in the first appeal. The mandate rule requires the district court to follow an appellate court's pronouncements on legal issues in subsequent proceedings in the case and to carry the appellate court's mandate into effect according to its terms.

In addition to state law requirements for parental termination, the requirements of the Indian Child Welfare Act, 25 U.S.C. §?1912, must be met in cases involving an Indian child as defined by the Act. Because children are entitled to permanency and because ICWA presents an opportunity for collateral attack of a state court judgment if its requirements are not met, we will not strain to infer findings from a vague reference to the requirement. The juvenile court must make detailed findings sufficient to satisfy ICWA. A qualified expert witness's expressed preference to deny termination of parental rights does not preclude the court from making findings sufficient to satisfy ICWA and ordering termination.

The statutory remedy of post-conviction relief pursuant to N.D.C.C. ch. 29-32.1 is not available to provide relief for disciplinary measures, custodial treatment, or other violations of civil rights of a convicted person occurring after the imposition of sentence.

A prima facie case consists of factual allegations sufficient to support a finding of a material change in circumstances and that a change is necessary to serve the best interests of the child. A "material change" is an important new fact that was unknown at the time of the prior custody decision. To establish a prima facie case that modification is necessary to serve the best interests of the children requires more than the improved circumstances of the party moving to modify primary residential responsibility. The preference of a mature child may be particularly significant to the trial court, both in determining whether there has been a significant change of circumstances and in determining the best interests of the child. The maturity of the child is a factually driven issue and will depend on the facts and circumstances of the case. The court should consider a mature child's preference only if there are persuasive reasons for that preference.

To claim a violation of his or her due process rights, a defendant must show the State acted in bad faith when it failed to preserve evidence. Sufficient evidence existed to convict a defendant of aggravated assault.

An application for post-conviction relief alleging constitutionally ineffective assistance of counsel under Padilla v. Kentucky was properly denied where the applicant failed to meet his burden to show he pleaded guilty to an offense mandating his removal and he was advised he may be deported. An applicant who argues they did not knowingly, intelligently, or voluntarily, enter their plea alleging they received ineffective assistance of counsel cannot establish a manifest injustice will result if they cannot withdraw their plea where they did not establish they received ineffective assistance of counsel.

A statute enjoys a conclusive presumption of constitutionality unless it is clearly shown that it contravenes the state or federal constitution. Due process is not violated merely because mens rea is not a required element of a criminal offense. A felony offense of issuing a check without sufficient funds under N.D.C.C. § 6-08-16(1)(d) does not violate due process and is constitutional on its face.

A district court order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

A juvenile court order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

A district court's dismissal of an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Juvenile court orders terminating parental rights are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Information from a tip may provide the factual basis for an investigative stop. In evaluating whether the factual basis for a stop meets the legal standard of reasonable and articulable suspicion, we consider the totality of the circumstances. Where a known, or easily ascertainable, informant provides a greater quantity of information than a bare assertion of possible impaired or erratic driving, the officer need not personally observe, or corroborate, evidence of criminal activity in order to have reasonable suspicion to stop a vehicle.

Statutory requirements for filing an appeal from an administrative agency decision are jurisdictional, and the appellant must satisfy the statutory requirements for the district court to acquire subject matter jurisdiction over the appeal.

The State bears the burden to prove a warrantless search falls within an exception to the warrant requirement. The automobile exception allows law enforcement to search a vehicle for illegal contraband without a warrant when probable cause exists. The search incident to arrest exception is limited to searches that implicate interests in protecting officer safety and evidence preservation. The inevitable discovery doctrine allows evidence obtained during an unlawful search to be admissible where it is shown that the evidence would have been gained even without the unlawful action.

When a defendant has previously filed an application for post-conviction relief, a subsequent motion filed under the Rules of Criminal Procedure will be treated as an application for post-conviction relief when the motion seeks to evade the boundaries of post-conviction proceedings. On its own initiative, a court may enter a judgment denying a meritless application for post-conviction relief on any and all issues raised in the application before any response by the state. A district court's summary dismissal of an application for post-conviction relief before a response by the State is analogous to dismissal of a civil complaint under N.D.R.Civ.P. 12(b) for failure to state a claim upon which relief can be granted. A defendant may waive their speedy trial claim in four ways: (1) by failing to present the claim prior to or at the trial (2) by entering a voluntary plea of guilty (3) by failing to demand a prompt trial or (4) by expressly consenting to the delay.

A district court's summary judgment and denial of post-judgment motion are summarily affirmed under N.D.R.App.P. 35.1(a)(1), (4), and (6).

The judgment of the district court is summarily affirmed as not clearly erroneous under N.D.R.App.P. 35.1(a)(2).

The district court erred when it included half of an obligor and his roommate's share of rent owed to a landlord as the obligor's income for purposes of calculating child support. Parenting decisions must be made in light of the child's best interests.

A district court's criminal judgment following a jury verdict is summarily affirmed under N.D.R.App.P 35.1(a)(3) and (4).

A party moving to modify joint residential responsibility more than two years after the initial order establishing residential responsibility bears the burden of showing a material change in circumstances has occurred. A court's decision on whether a material change has occurred is a finding of fact which will not be reversed unless it is clearly erroneous. A court is not required to analyze the best interest factors if a material change is not shown.

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

Rule 32(c)(2), N.D.R.Crim.P., does not provide the district court with authority to order that defense counsel be allowed to be present for a psycho-sexual evaluation. The district court has no authority under section 12.1-01-04(26), N.D.C.C., to order the Department of Human Services to allow defense counsel to be present during such an evaluation. A defendant's Sixth Amendment right to counsel is satisfied when defense counsel is given notice and an opportunity to consult with the defendant prior to the evaluation.

An order terminating parental rights in connection with a petition for adoption is summarily affirmed under N.D.R.AppP. 35.1(a)(2) and (4).

Law enforcement may not search an individual's home without a warrant unless the search falls within one of the recognized exceptions to the warrant requirement. Under the common-area, co-occupant consent exception, a co-occupant of a shared residence may consent to searches of the common areas of the residence. This Court will not set aside a district court's decision simply because the court may have applied an incorrect reason if the result is the same under the correct law and reasoning.

A workers' compensation claimant is not entitled to receive benefits if the claimant fails to file a written claim for benefits within the specified time under N.D.C.C. § 65-05-01. To have a compensable injury, a claimant must know or have reason to know the significance, or seriousness, of their condition and that the injury is work-related.

Whether an applicant for post-conviction relief adequately understands English without an interpreter is a finding of fact that will be affirmed on appeal if not clearly erroneous. An applicant cannot establish prejudice on an ineffective assistance of counsel claim alleging their attorney did not properly advise them on the immigration consequences of pleading guilty if the applicant offers only self-serving, subjective testimony that, with competent advice, they would have rejected a plea and proceeded to trial. An applicant must offer some evidence contemporaneous with the entry of the guilty plea to substantiate that the applicant would have gone to trial if he had known the deportation consequences of pleading guilty.

In proceedings relating to a motion to modify primary residential responsibility, a prima facie case warranting an evidentiary hearing consists of factual allegations sufficient to support a finding of a material change in circumstances and that a change is necessary to serve the best interests of the child. To establish a prima facie case that modification of primary residential responsibility is necessary to serve the best interests of the child requires more than the improved circumstances of the moving party.

A party moving to modify parenting time must establish that a material change of circumstances has occurred since entry of the prior parenting time order and that modification is in the child's best interests.

When ruling on a motion for substitution upon a party's death, the district court must determine whether the case was extinguished by the death, and if not, whether the party seeking substitution is the proper successor.

Counsel's failure to raise a novel or groundbreaking legal claim does not constitute ineffective assistance of counsel. A district court is the best credibility evaluator in cases of conflicting testimony, and we will not second-guess the district court's credibility determinations. The procedures in Rule 11, N.D.R.Crim.P., does not apply to admissions on probation revocation. Section 12.1-32-07(6), N.D.C.C., unambiguously restrains a district court's authority in probation revocation cases to imposition of the sentence initially imposed but suspended. State v. Gefroh, 458 N.W.2d 479, 483-84 (N.D. 1990) and State v. Lindgren, 483 N.W.2d 777, 779 (N.D. 1992) are overruled.

The district court did not abuse its discretion when it admitted blood test results into evidence over the Defendant's foundational objections that the State failed to prove scrupulous compliance with the approved method for collecting and submitting a blood specimen.

Whether to grant a motion for a continuance rests within the district court's discretion. Post-conviction relief is not a device for investigating possible claims, but a means for vindicating actual claims.

A juvenile court order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

A district court's orders for hospitalization and involuntary treatment with medication are summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Contract damages for breaching a duty to maintain buildings in a lease are measured by the lesser of the cost to repair and the diminution in value of the property when avoiding windfalls or economic waste.

A decision on a petition to remove a personal representative rests within the district court's sound discretion. A district court's decision whether to award attorney's fees incurred by a personal representative to be paid from the estate will not be reversed absent a clear abuse of discretion.

Before a court may set aside a transaction on the ground of mental incapacity, the party attacking the validity of the transaction has the burden to prove the grantor, at the time of the transaction, was so weak mentally as not to be able to comprehend and understand the nature and effect of the transaction. An agreement for the sale of real property must show who the contracting parties are, intelligently identify the subject matter involved, express the consideration, and disclose the terms and conditions upon which the contract is entered into. All things that in law or usage are considered as incidental to a contract or as necessary to carry it into effect are implied therefrom, unless some of them are mentioned expressly therein. A valid inter vivos gift requires: (1) an intention by the donor to then and there give the property to the donee, coupled with an actual or constructive (2) delivery of the property to the donee, and (3) acceptance of the property by the donee. In an action for specific performance, a purchaser may recover damages from a seller for delay in conveying real property. The detriment caused by the wrongful occupation of real property is deemed to be the value of the use of the property for the time of occupation, which can be shown by either identifying the fruits of the illegal possession, or through fair rental value of the property.

In addition to state law requirements for parental termination, the requirements of the Indian Child Welfare Act, 25 U.S.C. §?1912, must be met in cases involving an Indian child as defined by the Act. Because children are entitled to permanency and because ICWA presents an opportunity for collateral attack of a state court judgment if its requirements are not met, we will not strain to infer findings from a vague reference to the requirement. The juvenile court must make detailed findings sufficient to satisfy ICWA. A qualified expert witness's expressed preference to deny termination of parental rights does not preclude the court from making findings sufficient to satisfy ICWA and ordering termination.

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

An individual who performs services for another for remuneration is presumed to be an employee of the person for which the services are performed, unless it is proven that the individual is an independent contractor under the common-law test. Whether a worker is an independent contractor or an employee is a mixed question of fact and law. To be entitled to an award attorney's fees under N.D.C.C. § 28-32-50, a non-agency party must meet a two-part test: 1) the non-administrative agency party must prevail, and 2) the agency must have acted without substantial justification.

A district court order entering a domestic violence protection order is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

The district court must make sufficient findings of fact and conclusions of law after a bench trial to allow review of its decision on appeal. Whether property held in the name of an individual belongs to the partnership is a question of fact.

An argument is without merit if the party does not provide supportive reasoning or citations to relevant authorities. When ambiguity exists in an instrument conveying oil and gas interests, the parties' intent is a question of fact requiring factual findings based on extrinsic evidence. When the operator of an oil and gas well has relied to its determent on a division order signed by an underpaid royalty owner, the underpaid owner is estopped from recovering from the operator. The estopple rule does not apply when the underpayments are not made according to a signed division order.

"When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." N.D.C.C. § 1-02-05. The plain language of N.D.C.C. § 39-08-01(1)(f) does not require advice of criminal penalties to drivers before they can be charged with refusing a chemical breath test.

Expert testimony is admissible whenever specialized knowledge will assist the trier of fact. Expert testimony is admissible to address questions of fact, not law.

Criminal conviction for aggravated assault summarily affirmed under N.D.R.App.P. 35.1(a)(3). Ineffective assistance of counsel claims generally should not be brought on direct appeal, because post-conviction relief proceedings provide a more appropriate forum to develop the evidentiary record necessary for such claims.

A district court order awarding restitution is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A district court order denying postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

An appeal from a juvenile court order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

A criminal judgment for delivery of a controlled substance is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Criminal conviction for robbery with a firearm, destructive device, or other dangerous weapon and conspiracy to commit felonious restraint is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

District court orders denying motions for relief under N.D.R.Civ.P. 60(b)(6) are summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (4), and double costs and attorney fees are awarded under N.D.R.App.P. 38.

Juvenile court orders terminating parental rights are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

To modify primary residential responsibility after two years, the moving party must meet the requirements of the statutory framework, including that there has been a material change in circumstances of the child or the parties, and that modification is necessary for the best interests of the child. "Necessary" for the best interests of the child means there must be a showing that the changed circumstances had an adverse effect on the child or there had been a general decline in the child's condition. Because continuity and stability in a child's life is favored, an improvement to the moving party's life, without evidence of an adverse effect or general decline in the child, is insufficient to modify primary residential responsibility.

Criminal judgment entered after a jury found the defendant guilty of preventing arrest is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

A subsequent, summarized order for publication does not restart the time to appeal a termination of parental rights. An untimely notice of appeal leaves the Supreme Court without jursidiction to consider the appeal.

Litigants may not contradict themselves to manufacture factual disputes for purposes of avoiding summary judgment. Absent repudiation of a contract and the accompanying anticipatory breach, a breach of contract occurs when there is nonperformance of a contractual duty when it is due. The term "claim" is defined by N.D.C.C. § 30.1-01-06(7) to exclude disputes regarding title of a decedent to assets alleged to be included in the decedent's estate. The time limits set out by N.D.C.C. § 30.1-19-03(2) for demands against a decedent's estate only apply to "claims." For a demand to be excluded from the time limits because it is a dispute regarding title and not a "claim," the claimant must make at least a "colorable showing" of title. Casting a claim in terms of title is insufficient to avoid the time limits if the gist of the claim sounds in contract or tort. An argument is without merit if a party does not provide supportive reasoning or authority.

An application for postconviction relief must be filed within two years of the date the conviction becomes final unless an applicant meets the burden of establishing that any of the three exceptions to the statute of limitations applies. State v. Atkins, 2019 ND 145, 928 N.W.2d 441, did not announce a new interpretation of state law within the meaning of N.D.C.C. § 29-32.1-01(3)(a).

A juvenile court order finding two children to be deprived is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

The defendant has the burden to show he is entitled to additional credit for time served in custody. When time spent in custody is credited toward an unrelated charge, the defendant is not entitled to have that time spent in custody applied to another sentence. An appellee who has not cross-appealed may not seek a more favorable result on appeal than received in the trial court.

A defect in the application for probate of a will does not render the probate void. Summary judgment is appropriate in an undue influence claim if the non-moving party's opposition is not supported with admissible evidence showing a genuine issue for trial. The plain language of N.D.C.C. § 28-26-01(2) requires courts in civil actions to award costs and fees upon a finding a claim for relief was frivolous, providing the prevailing party pled the alleged frivolousness of the claim. Section 28-26-31, N.D.C.C., authorizes attorney's fees if allegations and denials in any pleading are not made without good faith and reasonable cause.

A scale only alleged to have been used to weigh and package methamphetamine into smaller quantities did not satisfy the statutory element requiring use or intent to use the scale to produce or prepare methamphetamine.

A juvenile court order declining to terminate parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

A juvenile court order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

The district court has subject matter jurisdiction over trusts. Service of process in a trust proceeding on an attorney representing a party in a probate proceeding is ineffective. A party has ten days to file a demand for change of judge after being added to a proceeding.

In a postconviction relief proceeding, claims that were raised or could have been raised in an earlier postconviction relief proceeding are barred by the doctrine of res judicata.

Under N.D. Sup. Ct. Admin. R. 13, § 10(a), the findings and order of the judicial referee have the effect of the findings and order of the district court until superseded by a written order of a district court judge. Juvenile court's finding that father abandoned child is not clearly erroneous when the father has not provided care for or had any contact with the child since 2007 or 2008, and has not made any significant attempts to locate the child or have the child placed in his care. Juvenile court is not required to specifically identify and discuss each best interest factor if the Court is able to discern how the juvenile court's findings apply to the best interest factors. When a child is deprived by the parents, no finding of exceptional circumstances is required to be made by the juvenile court to grant a guardianship. The finding of deprivation eliminates the need for a finding of exceptional circumstances.

A Findings of Fact and Order Reappointing Guardian and Conservatorship and Continuing Guardianship Following Review and Denying Petitioners Request in Full is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

North Dakota's Uniform Nonparent Custody and Visitation Act governs nonparent visitation rights. The district court may order visitation if petitioners prove: (1) a substantial relationship with the child and (2) the denial of visitation would result in harm to the child. Petitioners have the burden of proving the requirements by clear and convincing evidence. "Harm to child" means a "significant adverse effect on a child's physical, emotional, or psychological well-being."

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. The district court must award primary residential responsibility to the parent who will promote the child's best interests and welfare. The district court must determine the total value of the marital estate in order to make an equitable division of property.

When determining primary residential responsibility of a minor child, the district court must consider the best interest factors and make findings with sufficient specificity to show the factual basis for its decision. Deferential review of a district court's primary residential responsibility determination is especially applicable in cases involving two fit parents. Under N.D. Admin. Code § 75-02-04.1-01(6)(d), an individual obligated to provide child support may deduct a portion of payments made to afford health insurance coverage for the child.

A district court may conduct a proceeding by reliable electronic means on its own motion or on a party's motion. An ostensible agency results when the principal causes a third person to believe another is the principal's agent even though the other person is not employed by the principal. Unjust enrichment is an alternative claim, and a legal claim which has yet to fail or succeed does not preclude a plaintiff from also asserting an unjust enrichment claim.

Generally, when a contract is silent as to its duration, it is terminable at will by either party. Conduct establishing a breach of contract does not subject the defendant to a negligence action, unless the defendant's conduct also establishes a breach of an independent duty that does not arise from the contract.

The State may appeal from a district court order granting a defendant a reduction in sentence as the reduction affects a substantial right of the State. The district court's acceptance of a plea agreement does not preclude it from later exercising discretion in reducing the defendant's sentence. Such a reduction is subject to the abuse of discretion standard of review on appeal. This Court's power on appeal is limited by N.D.C.C. § 29-28-35. When the State appeals, this Court cannot reverse an order of the district court if doing so would increase the defendant's sentence.

A district court has broad discretion to impose sanctions for discovery abuses, including striking pleadings or entering default judgment, when there is a deliberate or bad-faith non-compliance which constitutes a flagrant abuse of or disregard for the discovery rules.

A precise time period is not required in a criminal prosecution unless time is an essential element of an offense. Time is not an essential element of gross sexual imposition.

Denial of a motion to relocate with minor children is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A district court judgment affirming an administrative law judge's decision that affirmed a North Dakota Workforce Safety and Insurance decision denying benefits is summarily affirmed under N.D.R.App.P. 35.1(a)(5) and (7).

A criminal judgment and an order denying a motion to withdraw guilty pleas are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

An officer does not seize a person under the Fourth Amendment by approaching them in a public place. In deciding whether a seizure is justified, this Court analyzes whether there is reasonable and articulable suspicion that a person has committed or is about to commit a crime. The government must demonstrate a chemical test was fairly administered for it to be admitted into evidence. Although N.D.C.C. § 39-20-07 provides a statutory shortcut for evidence of a chemical test result, expert testimony can be used to show fair administration of chemical testing.

A preliminary hearing is not a trial on the merits, and finding of probable cause may be based on hearsay evidence and evidence that would be inadmissible at the trial. The district court's authority to weigh evidence and assess credibility of witnesses at a preliminary hearing is limited. A district court abuses is discretion in refusing to allow the State to present its evidence at a preliminary hearing when testimony is not implausible or incredible.

Comments due December 16, 2021

When summary judgments are reviewed, the evidence is viewed in the light most favorable to the opposing party, giving that party the benefit of all favorable inference which can reasonably be drawn from the record. The language of a contract governs its interpretation if the language is unambiguous. Summary judgment is proper against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case and on which the party will bear the burden of proof at trial. The party asserting an avoidance or affirmative defense has the responsibility to set forth specific facts showing there is a genuine issue for trial on that defense to preclude summary judgment.

District courts consider the whole statute to determine the intent of the legislature, deriving that intent by comparing every section and subsection as a part of that whole, and by considering other statutes on the same subject matter. Under N.D.C.C. § 15.1-15-02, a "probationary teacher" is an individual teaching for less than two years in a particular school district.

A criminal judgment entered after a jury found the defendant guilty of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

A district court order denying a motion to modify primary residential responsibility is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A petitioner must file an application for postconviction relief within two years of the date the conviction becomes final. However, a court may consider an application for relief after the two years have elapsed if the applicant establishes that he or she suffered from a mental disease that precluded a timely application for relief.

A district court's distribution of marital property in a divorce proceeding is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

An order denying a motion to modify primary residential responsibility is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

In an appeal from a bench trial, the district court's findings of fact are reviewed under the clearly erroneous standard and its conclusions of law are fully reviewable. A district court's choice between two permissible views of the weight of the evidence is not clearly erroneous. A district court's decision to deny a motion for relief from a judgment will not be reversed on appeal unless the court abused its discretion in ruling there were not sufficient grounds for relief from the judgment. Relief from a judgment on grounds of fraud, misrepresentation, or other misconduct is extraordinary relief that should only be granted in exceptional circumstances.

When the Court remands for redetermination of an issue without specifying the procedure to be followed, the district court may decide the issue based on the evidence already before it or may take additional evidence. Under the "alter ego" approach to piercing the corporate veil, there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist, and there must be an inequitable result if the acts in question are treated as those of the corporation alone. This approach analyzes whether a corporation is merely an instrumentality or alter ego of its owner, and requires examination of the Hilzendager-Jablonsky factors, including the "injustice, inequity or fundamental unfairness" element.

In a proceeding initiated as informal probate, extensive litigation can convert the proceedings into formal probate. In a formal probate proceeding, once a final judgment is entered approving a final distribution and accounting, a party may not file a petition to approve an amended final accounting. While this Court disapproves of a district court's wholesale adoption of a party's proposed findings of fact, those findings of fact will not be overturned on appeal unless they are clearly erroneous. A district court did not abuse its discretion in awarding attorney's fees to be paid by the personal representatives personally when it found the personal representatives' motions were frivolous and for an improper purpose.

A preliminary hearing is not a trial on the merits, and the State must only produce sufficient evidence to satisfy the court that a crime has been committed and that the accused is probably guilty. The district court's role in a preliminary hearing is not a trier of fact, but its function is solely to determine the existence or absence of probable cause. The State is not required to introduce results of a field test or the state lab at a preliminary hearing, and probable cause can be established through circumstantial evidence and officer testimony. The State need only produce sufficient evidence to warrant a person of reasonable caution to believe a crime has been committed and the accused probably committed the crime.

The district court's probable cause determination in a civil commitment case becomes moot once the commitment hearing is held. In proceedings for the civil commitment of a sexually dangerous individual, the district court errs when it fails to make a finding on whether the respondent has serious difficulty controlling his behavior.