Slip opinions decided 2023 — North Dakota Reports

When the district court fails to adequately explain the legal basis for its decision, appellate review of the decision is not possible and remand is appropriate.

Dismissal of motions requesting a new trial are summarily affirmed under N.D.R.App.P. 35.1(a)(8).

When a party files a motion for a new trial under N.D.R.Civ.P. 59, review on appeal is limited to the grounds presented in the motion. Entities sharing common ownership may be responsible for each other's liability under veil piercing jurisprudence. Jury findings are not required for entry of a deficiency judgment on commercial property.

An order for continued treatment is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A party may not challenge on appeal an alleged error invited by that party. An obvious error is an error that is plain and affects the defendant's substantial rights. Jury instructions must correctly and adequately inform the jury of the law, and a jury instruction that fails to instruct the jury on all of the essential elements of an offense is in error.

The district court's determination of a witness's credibility is deferred to and conflicts in testimony are resolved in favor of affirming the court's decision in an appeal from a decision on a motion to suppress evidence. The inevitable discovery doctrine applies only when the police have not acted in bad faith to accelerate the discovery of evidence and the prosecution proves the evidence would have been found without the unlawful activity.

Under N.D.R.Crim.P. 43(a)(1)(B), a defendant has a right to be present in the courtroom at every critical stage of trial. This right is not absolute. A defendant need not be present for discussions about routine administrative matters, logistical, procedural and housekeeping matters, and rulings on evidence and objections. To request the amendment of a rule, a petitioner must file properly under N.D.R.Proc.R. § 3.1.

A criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

A district court's decision to grant an extension or discovery order is discretionary and will not be overturned unless the court abuses its discretion. When a litigant's pre-filing applications were denied by a district court pursuant to an improperly entered pre-filing order, the remedy is permission to re-file those motions in unmodified form. When a petitioner does not provide sufficient information to inform a district court of their current income, a court does not err in denying a request to amend a child support obligation. Issues that are not adequately briefed and do not provide relevant authority will not be considered by this Court.

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

For child support purposes the definition of income is very broad and is intended to include any form of payment to an obligor, regardless of source, which is not specifically excluded under the guidelines.

A party to a contract does not waive its contractual rights when its actions are expressly authorized by the terms of the contract. When a contract has but a single object and such object is wholly impossible of performance, the entire contract is void. The injured party has a duty to mitigate or minimize its damages and must protect itself if it can do so with reasonable exertion or at trifling expense, and can recover from the delinquent party only such damages as it could not, with reasonable effort, have avoided. Continued employment for a substantial period of time is sufficient consideration to support an employment agreement. A district court's decision on a motion to alter or amend judgment under N.D.R.Civ.P. 59(j) will not be reversed unless the court abused its discretion. Issues that were not properly raised before the district court will not be considered on appeal.

Res judicata prohibits the relitigation of claims or issues that were raised or could have been raised in an earlier action between the same parties and was resolved by final judgment. Administrative res judicata is the judicial doctrine of res judicata applied to an administrative proceeding. Administrative res judicata is applied more circumspectly than judicial res judicata, taking into account (1) the subject matter decided by the administrative agency, (2) the purpose of the administrative action, and (3) the reasons for the later proceeding. WSI may not issue a permanent impairment award for impairment findings due to preexisting conditions.

Unless an exception applies, a motion to modify primary residential responsibility filed within two years of the judgment establishing primary residential responsibility requires the movant to satisfy the heightened standard under N.D.C.C. § 14-09-06.6(3). A district court's decision on a motion to relocate is a finding of fact that will not be reversed on appeal unless clearly erroneous. A district court is not required to hold a hearing under N.D.R.Ct. 3.2(a)(3) if a party does not request a hearing and secure a time for the hearing. A district court is not required to consider an untimely declaration under N.D.R.Ct. 3.2(a)(2).

Under N.D.C.C. § 27-20.1-11(1)(d), a juvenile court may appoint a guardian of a child if the court finds by clear and convincing evidence that the appointment is in the child's best interest and the child is in need of protection.

This Court exercises its authority to issue supervisory writs rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases when no adequate alternative remedy exists.

An order for continued treatment is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A district court does not commit clear error when it determines that certain items and their valuations should be included in a marital estate if it relies on valuations within the range of evidence presented and at the time of separation. A district court's finding of economic misconduct may include unaccounted-for spending and dissipation of assets that occurs after a date of separation. A district court's denial of spousal support is not clear error when supported by facts within the record that demonstrate economic misconduct coupled with evidence showing the parties earn a similar income.

Under N.D.R.Civ.P. 37, a district court has a spectrum of sanctions available for discovery violations, including an entry of default judgment. Default judgment should be imposed only if there is a deliberate or bad faith non-compliance which constitutes a flagrant abuse of or disregard for discovery rules. An award of damages entered on default judgment will not be obstructed unless the award is so excessive or inadequate.

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

A criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(8) and (4).

A summary eviction action may be brought to recover the possession of real estate if a lessee violates a material term of the written lease agreement between the lessor and lessee. Whether a lease has been fully complied with should be treated as a finding of fact because the rules of construction relating to contracts generally apply to the construction of leases. In a bench trial, the district court is the determiner of credibility issues and we will not second-guess the district court on its credibility determinations. Findings of the trial court are presumptively correct. An order holding a person in contempt is a final order for purposes of appeal. A contempt order is immediately appealable.

Interpretation of an insurance policy presents a question of law, reviewed de novo on appeal. Exclusions from coverage must be clear and explicit and are strictly construed against the insurer. While exclusionary clauses are strictly construed, an insurance contract will not be rewritten to impose liability when the policy language unambiguously precludes coverage.

Ordinarily, a dismissal without prejudice is not appealable because either side may commence another action. A dismissal without prejudice may be final and appealable if the plaintiff cannot cure the defect that led to dismissal or if it has the practical effect of terminating the litigation in the plaintiff's chosen forum. A district court's authority to grant declaratory relief requires the exhaustion of administrative remedies.

The right to appeal is statutory. If no statutory basis exists for an appeal, the court lacks appellate jurisdiction and must dismiss the appeal. In juvenile matters, an aggrieved party, including the state or a subdivision of the state, may appeal from a final order, judgment, or decree of the juvenile court by filing written notice of appeal.

In civil commitment hearings, the State is burdened with demonstrating by clear and convincing evidence that an individual is a sexually dangerous individual. To do so, the State must establish three statutory elements. Additionally, the State must establish the individual has serious difficulty in controlling behavior, as required by substantive due process.

A construction lien covers the land on which an improvement is located to the extent of the right, title, and interest of the owner for whose use or benefit the labor was done or materials furnished. A property owner that successfully contests the validity or accuracy of a construction lien is entitled to an award of costs and attorney's fees.

An order that has the practical effect of terminating the litigation in the Plaintiff's chosen forum and effectively forecloses litigation in the courts of this state may be appealable. The mere pendency of a legal action in one state, alone, does not require abating an action in a second state involving the same parties and the same subject matter. Under the principles of comity, the district court has discretion to stay an action properly within its jurisdiction until a court in another jurisdiction concludes litigation involving the same parties and subject matter.

Secured creditors may recover on a debt by proceeding against all collateral in a single action or by proceeding against personal property after foreclosing a real property mortgage securing the same debt. An existing lien on collateral, when acknowledged by a subsequent party taking an interest in that collateral, will remain foreclosable by the secured party maintaining the lien. Privity exists when one is so identified in interest with another that the person represents the same legal right. The plain language of a contract is used to determine the parties' intent.

Comments from the State focusing on inconsistencies in a defendant's case do not amount to prosecutorial misconduct. A criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Evidence not stricken from the record, or for which the jury was not instructed to disregard, remains available for the jury's consideration. Sufficient evidence for a conviction exists if based on the evidence a jury could draw a reasonable inference of guilt. An objection must be made to preserve each alleged issue for appeal. Without an objection, the alleged issue is reviewed for obvious error. An individual who has pleaded guilty or been found guilty of indecent exposure is required to register as a sexual offender. The district court may deviate from this requirement, if specified conditions exist.

Issues not necessary to the determination of an appeal will not be addressed. The district court may rely on pre-divorce conduct when determining a custody matter when it was unaware of the conduct prior to the time of the hearing. Issues not argued to the district court will not be considered for the first time on appeal. A district court's order denying a motion to modify primary residential responsibility 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)(4)

There is a fundamental right for a woman to obtain an abortion in instances where it is necessary to preserve her life or health. Access Independent Health Services, Inc., d/b/a Red River Women's Clinic has a substantial likelihood of succeeding in establishing N.D.C.C. § 12.1-31-12 is not narrowly tailored to the State's compelling interests. A granting of a preliminary injunction will not be overturned unless the district court abused its discretion.

Contempt proceedings are collateral to the merits of a case and specially appealable. The purpose of an appeal is to review the actions of the district court. An issue not presented to the district court cannot be raised for the first time on appeal. Under N.D.R. Ct. 3.2(a)(3), a request for a hearing must be timely, and the requesting party must secure a time for the hearing and serve notice on the opposing party.

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).

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

The appellate court has discretion whether to grant a parties' request for judicial notice on appeal. A court's review of special assessments for local improvements is limited to assuring that local taxing authorities do not act arbitrarily, capriciously, or unreasonably. Special assessments for local improvements are presumed valid, and the burden is on the party challenging the validity to demonstrate they are invalid. A special assessment against any property must not exceed the benefit the property receives from the improvement. An adequate record for review of a special assessment commission's determination must include a showing of how the commission determined the project benefit. A special assessment commission has broad discretion to choose the method used to decide benefits and assess individual properties. Issues not raised in the district court cannot be raised for the first time on appeal.

Section 25-03.3-04, N.D.C.C., precludes a court from destroying records early under N.D.R.Juv.P. 19(e) when the alleged offense is an offense defined in N.D.C.C. § 12.1-20 or N.D.C.C. § 12.1-27.2.

The structural error doctrine applies to a narrow class of rights, including three Sixth Amendment rights defining the framework of a trial: the right to counsel, the right to self-represent, and the right to a public trial. Voir dire falls within the scope of public trials under the Sixth Amendment. A structural error affects the framework within which a trial proceeds and therefore renders the trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. When a transcript is available to the public after the trial, all of the values of public access are preserved. The de novo standard of review to whether facts rise to the level of a constitutional violation, including a claim that prosecutorial misconduct denied a defendant's due process right to a fair trial. Appellate review of a criminal sentence is generally limited to determining whether the district court acted within the statutory sentencing limits or substantially relied upon an impermissible factor.

An amended judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

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

A Batson challenge includes a three-step inquiry: (1) A defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race (2) If that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question and, (3) In light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination. The burden for showing purposeful discrimination rests upon the opponent of the peremptory strike. In reviewing challenges to the sufficiency of the evidence on appeal, the defendant bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict.

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

A district court order denying an application for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

A district court order denying a motion for sentence reduction is summarily affirmed under N.D.R.App. 35.1(a)(7).

A disorderly conduct restraining order must be supported by specific findings of intent to adversely affect the safety, security, or privacy of another person.

This Court exercises limited review in appeals from administrative agency decisions. However, the application and interpretation of a statute is a question of law, which is fully reviewable in an administrative appeal.

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

An order requiring hospitalization is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A personal representative is entitled to reasonable compensation for the personal representative's services. A district court's decision whether to award personal representative's fees will not be reversed on appeal absent an abuse of discretion. The court's underlying findings of fact will be upheld unless clearly erroneous.

WSI can exercise continuing jurisdiction under N.D.C.C. § 65-05-04, but is limited by the law-of-the-case doctrine. N.D.C.C. § 65-05-15 applies when a prior injury known in advance of the work injury has caused previous interference with physical function, the progression of which is substantially worsened by a compensable injury.

In the instance of an alleged public trial violation, an appellant must demonstrate the public was excluded from a proceeding taking place during trial, and that the proceeding was substantive in nature. A district court closing a proceeding to the public is significantly different from the court failing to make an adequate record of a bench conference conducted in an open trial. An inadequate record is not equivalent to a closed trial. To demonstrate that an inadequate record affects a defendant's substantial rights, the defendant must demonstrate the record cannot be adequately supplemented or reconstructed. A violation of Appendix 1, Standard 7(d), N.D. Sup. Ct. Admin. R. 9 is not per se reversible error.

A district court's finding on a valuation of real property is not clearly erroneous if it is within the range of evidence presented. A district court's finding on economic fault will not be reversed unless the finding is clearly erroneous. A district court has broad discretion to award attorney's fees. An award of spousal support must be supported by sufficient findings.

An order of contempt and an amended order of contempt and award of attorney's fees are summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Ordering a mistrial is an extreme remedy that is only appropriate when there is a fundamental defect or occurrence at trial that makes it evident that continuing would be productive of manifest injustice. Curative jury instructions will generally remove prejudice caused by a prosecutor's improper statements because a jury is presumed to follow the district court's instructions.

Comments due April 10, 2023

Interpretation of an insurance policy is a question of law, fully reviewable on appeal. If coverage hinges on an undefined term, the plain, ordinary meaning of the term applies in interpreting the contract. While insurance policies are regarded as adhesion contracts and ambiguities are resolved in favor of the insured, a contract will not be rewritten to impose liability on an insurer if the policy unambiguously precludes coverage. The phrase "similar insurance" used in an automatic termination or cessation provision means similar in type and in amount.

A district court's findings that changing a child's name is in the best interests of a child satisfies the good cause standard under N.D.C.C. § 14-20-57(7). Under section 14-03-20.1(2)-(3), N.D.C.C., a "person's surname does not automatically change upon marriage," but parties to a marriage may choose to change their name after solemnization "by entering the new surname in the space provided on the marriage license application." A district court may order a child's name be changed to a hyphenated combination of the parents' names when requested as an alternative by a parent even when a petition does not specifically request that option, provided that both parties have notice at the hearing and opportunity to respond.

A judgment dismissing a personal injury action is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

The district court's findings are inadequate to understand the basis for the decision. The Court retains jurisdiction and remands for the district court to make specific findings of fact on whether there was infliction of fear of imminent domestic violence.

A district court must inform the defendant of the court's authority to order restitution before a guilty plea can be accepted.

Without a valid request for an on-site screening test, including a valid advisory, there can be no refusal to submit to screening under N.D.C.C. § 39-20-14.

A district court order denying a motion to vacate the judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

District court orders denying petitions for name changes are summarily affirmed under N.D.R.App.P. 35.1(a)(7). Orders denying leave to file are not appealable.

The court may modify or enlarge conditions of probation at any time before the expiration or termination of the period for which the probation remains conditional, upon notice to the probationer and with good cause. If the probationer violates a condition of probation, the court may continue the existing probation with or without modifying or enlarging the conditions or revoke probation and impose sentence. A probationer is entitled to notice of the alleged violations of probation. Where the court sets a revocation matter for review at a subsequent hearing without issuing a final order disposing of the petition, the petition remains pending until that later hearing and issuance of a final order.

The definition of official detention does not preclude custody while on probation. An unambiguous sentence pronouncement controls over an ambiguous sentence, whether oral or written. When there is an ambiguity between two sentences, the record must be examined to determine the district court's intent.

Whether to stay enforcement of a judgment pending appeal is a collateral matter within the district court's jurisdiction. An order denying a motion for contempt and an order denying a motion for N.D.R.Civ.P. 60(b) relief from a divorce judgment are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

A district court order denying petition for discharge from civil commitment as a sexually dangerous individual is affirmed.

Civil commitments of sexually dangerous individuals are reviewed under a modified clearly erroneous standard. A district court's decision will be affirmed unless it is induced by an erroneous view of the law or the decision is not supported by clear and convincing evidence. Substantive due process requires that in order to be civilly committed as a sexually dangerous individual, that individual must have serious difficulty controlling their behaviors. There must be a connection between an individual's disorder and their inability to control behavior such that it would likely result in future sexually predatory conduct. In establishing this connection, a district court cannot rely solely on prognostic factors, but must support its finding with contemporary evidence or specific instances of conduct to demonstrate serious difficulty controlling behavior. Under N.D.C.C. § 25-03.3-13, the executive director of the Department of Human Services maintains authority to place a sexually dangerous individual in an appropriate facility or program at which treatment is available. A district court is not allowed to determine treatment placement under N.D.C.C. § 25-03.3-13 at a discharge hearing.

An operator of oil and gas wells may impose a statutory penalty on a mineral owner who does not lease or participate in the risks and cost of drilling. A risk penalty may be imposed only if an operator has made a good-faith attempt to lease from a non-participating mineral owner.

A criminal judgment entered after a jury convicted defendant of one count of continuous sexual abuse of a child and two counts of promoting obscenity to minors is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

An attorney may not compromise a client's claims in the absence of express authority, and an attorney may not waive a client's substantial rights without the client's consent. Whether an attorney has been given express authority to settle a claim normally presents a question of fact. The trial court may take one of three possible avenues to decide a motion to enforce a settlement agreement: (1) hold an evidentiary hearing on the motion to determine disputed facts and then enter judgment after taking evidence to prove the agreement and any defenses that the nonmoving party may proffer, (2) dispose of the motion on the pleadings, or (3) treat the motion as akin to one for summary judgment. Whether a party is entitled to a jury trial depends on whether the case is an action at law or a claim in equity. Historically, specific performance has been an equitable remedy, and no jury trial is available on such claims. When conflicting testimony is presented, our ability to examine a cold record is a poor substitute for the fact finder's opportunity to observe the demeanor of the witnesses.

Convictions of domestic violence and false information or report to law enforcement are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

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 attorney's actions during voir dire are considered matters of trial strategy. An unsuccessful trial strategy does not make defense counsel's assistance defective, and we will not second-guess counsel's defense strategy through the distorting effects of hindsight.

The district court abuses its discretion when it allows testimony regarding statements made by a victim before the victim testifies and is subject to cross-examination regarding those statements. Allowing testimony regarding statements made by a victim before the victim testifies and is subject to cross-examination regarding those statements will be considered harmless if the testimony of the witnesses was merely cumulative to that of the victim. Substantial evidence existed to support the conviction and is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

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

The district court may summarily dismiss a petitioner's application for post-conviction relief without giving notice when the application on its face is meritless and fails to allege any supporting facts.

A district court's order denying a post-conviction relief application based on newly discovered evidence and ineffective assistance of counsel is affirmed. To succeed on a post-conviction relief claim based on newly discovered evidence a defendant must show 1) evidence was discovered after trial, 2) the failure to learn about the evidence was not the result of defendant's lack of diligence, 3) the newly discovered evidence was material to the issues, and 4) the weight and quality of the evidence would likely have resulted in an acquittal. To prove post-conviction relief based on ineffective assistance of counsel an applicant must 1) show that counsel's representation fell below an objective standard of reasonableness and 2) show that there was a reasonable probability that, but for the counsel's unprofessional errors, the result of proceeding would have been different.

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

Class A misdemeanors involving different crimes committed against different victims on different dates can be consecutively sentenced under N.D.C.C. § 12.1-32-11(3). Whether a crime was committed as part of a different course of conduct is a mixed question of law and fact.

A defendant may be charged with escape under N.D.C.C. § 12.1-08-06 if they are in custody at a facility for custody of persons under charge or conviction of an offense, leave while participating in a work release program, and fail to return to the facility. "Official detention" as defined by N.D.C.C. § 12.1-08-06(3)(b) precludes only "supervision on probation" and "constraint incidental to release." The definition of "official detention" does not preclude custody while on probation.

While the district court may direct a party prepare and submit to the court a proposed summary real estate disposition judgment, nothing in the relevant statute prohibits a party from submitting a proposed summary real estate disposition judgment for the court's consideration absent direction from the court to do so. A district court generally does not retain jurisdiction to modify a final property distribution, but the court has broad equitable powers to redistribute property in a post-judgment proceeding when a party fails to comply with the terms of an order distributing property. A party seeking a contempt sanction has the burden to clearly and satisfactorily prove the alleged contempt was committed. Whether contempt has been committed lies within the district court's discretion. The district court has discretion in deciding what interest rate to apply to a monetary award in a divorce action. Damages and single or double costs, including reasonable attorney's fees, may be awarded on appeal if an appeal is frivolous. An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which evidences bad faith.

Substantially justified means justified to a degree that could satisfy a reasonable person.

A closure may occur where some or all members of the public are precluded from perceiving contemporaneously what is transpiring in the courtroom, because they can neither see nor hear what is going on. When questioning occurs at the bench, the public can still observe the proceedings, thus furthering the values that the public trial right is designed to protect, and can hear the general questions posed to the jury panel. A trial court has great discretion over how to conduct a trial and to keep questioning within bounds and may remind counsel to refrain from further incursions into collateral and immaterial matters. A district court has the common law power to explain, summarize, and comment on the facts and evidence and may also question witnesses and analyze and dissect the evidence. A court may not, however, act as a witness, nor add to or distort the evidence. If a judge exceeds the limitations on his power, it may amount to prejudicial error and require reversal.

A criminal judgment entered after a jury convicted defendant of child abuse in violation of N.D.C.C. § 14-09-22 is affirmed. A district court's use of "willfully allowed to be inflicted" in the jury instructions for an allegation of child abuse under N.D.C.C. § 14-09-22 is not obvious error if counsel fails to establish the instruction is a clear deviation from an applicable legal rule under current law. The North Dakota Legislature chose to enumerate two alternative means of committing child abuse under N.D.C.C. § 14-09-22 without intending to define separate elements or crimes. A jury is not required to unanimously agree upon which of the two alternative means of committing child abuse it believes the State proved beyond a reasonable doubt.

A district court order denying a motion to review and amend child support is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (8).

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

Cassandra Goetz appeals from a district court order and corrected amended judgment modifying primary residential responsibility. On appeal, Cassandra Goetz argues the court erred by modifying residential responsibility and by awarding Joshua Goetz primary decision making responsibility.

District courts must substantially comply with N.D.R.Crim.P. 11 to ensure a defendant knowingly and voluntarily enters a guilty plea. The Court remands to provide the State the opportunity to file transcripts to prove the district court substantially complied with N.D.R.Crim.P. 11.

An appeal from a decision terminating parental rights must be filed within 30 days of entry of the order or judgment. The North Dakota Rules of Appellate Procedure do not authorize an extension. An appeal not filed within 30 days of entry of the order or judgment must be dismissed for lack of jurisdiction. Part of a judgment terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

In a summary eviction proceeding, the right to the possession of the real estate is the only fact that can be litigated unless damages or rent is claimed.

The district court does not err in finding an oral contract existed when no evidence existed that any party lacked the capacity to contract. Agreeing to sell a party's interest in estate property constitutes valid consideration. The district court does not err in finding mutual assent was present when evidence existed that parties came to an agreement. Substantial, permanent, and valuable improvements made to a property may be considered part performance sufficient to take an oral agreement outside of the statute of frauds. The district court does not err in finding personal property items were distributed properly according to a previously created agreement. The district court does not err in finding a personal representative failed to properly maintain the property when the personal representative failed to obtain home insurance, care for the exterior of the home, or pay utilities. The district court does not abuse its discretion when it denies claims for reimbursement from a personal representative when the personal representative failed to provide evidence on what costs he incurred. The district court may impose a remedial or punitive sanction for contempt when a personal representative breaches his fiduciary duty.

When making an arrest without a warrant, the officer shall inform the person to be arrested of the officer's authority and the cause of the arrest, unless an exception under N.D.C.C. § 29-06-17 applies. Relevant factors in determining whether probable cause to arrest a person for a DUI exists include the detection of the odor of alcohol, observation of signs of impairment, the failure of one or more field sobriety tests, the individual has red and bloodshot eyes, an admission to having consumed an alcoholic beverage, the failure of the HGN test, a traffic violation, or erratic driving.

When a district court concludes that an individual has a serious difficulty controlling behavior, its findings must identify recent conduct or describe anything that shows the individual has a "present serious difficulty controlling his behavior."

Dismissal of a criminal case with prejudice is a remedy that should only be used in extreme circumstances. In order to dismiss a criminal case with prejudice, a district court must make a finding of bad faith, harassment, or prosecutorial misconduct, and this finding must be supported by clear and convincing evidence. The State must be provided with notice, and an opportunity to respond, and lesser alternative sanctions must be considered before a district court may dismiss with prejudice. It is an abuse of discretion when a district court fails to consider whether lesser sanctions are available or appropriate before dismissing a criminal case with prejudice.

If an entity violates section 44-04-18, N.D.C.C., an interested person or entity may not file a civil action seeking attorney's fees or damages, or both, until at least three working days after providing notice of the alleged violation to the chief administrative officer for the public entity under N.D.C.C. § 44-04-21.2(3).

Whether to allow evidence on a motion, and what type of evidence to allow, is within the sound discretion of the district court. The remedy for unfair surprise is a continuance. A movant requesting changed parenting time is not required to establish a prima facie case to obtain an evidentiary hearing. The standard for determining whether a material change in circumstances has occurred for purposes of modifying parenting time does not require an adverse effect on the child or a resulting decline in the child's condition. A party may not use subsequent proceedings to collaterally attack a final decision that was not appealed.

A motion for new trial is reviewed for abuse of discretion. Whether a jury verdict was coerced depends on the totality of the circumstances. The district court does not abuse its discretion when it does not consider a juror declaration pertaining to the mental process of a juror during deliberations when deciding a motion for new trial.

The requirements for perfecting an appeal under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, are jurisdictional. Jurisdictional requirements do not allow for equitable exceptions. The terms of the statutes governing appeals control whether the time for taking an appeal may be tolled.

A district court's review of in-camera documents is reviewed for an abuse of discretion. A district court's conclusion that attorney work product meets the potential liability exception under N.D.C.C. § 44-04-19.1(8) must include a finding that the records relate to circumstances for which there remains a genuine potential for liability. A public entity that has a legal duty to defend its member agencies may be able to demonstrate that attorney work product is exempt from disclosure if disclosure would reveal records that relate to circumstances for which there remains a genuine potential for liability. A district court must follow the pronouncements of an appellate court on legal issues in subsequent proceedings of the case.

To modify a primary residential responsibility order within the two-year period following the entry of the order the movant must make a prima facie case showing the requirements under N.D.C.C. § 14-09-06.6(5). The district court can grant relief from an order if the party shows any of the reasons necessary for relief under N.D.R.Civ.P. 60(b). Attorney's fees awarded by the district court will be reversed if the court abused its discretion.

A district court judgment dividing marital property, weighing the best interest factors and awarding parenting time is affirmed. A district court has broad discretion over the progress and conduct of a trial, and the determination whether to grant a continuance lies within the sound discretion of the district court. Under N.D.R.App.P. 38, this Court may award attorney's fees if the appeal is frivolous. An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which evidences bad faith.

Postconviction relief is governed by statute, and its proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure. An application for postconviction relief must be filed within two years after the conviction becomes final unless there is newly discovered evidence, delay due to physical disability or mental disease, or newly interpreted law retroactively applicable.

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

Order and decree terminating parental rights to a minor child and granting a petition for adoption summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

The district court's findings are inadequate to understand the basis for the decision. The Court retains jurisdiction and remands for the district court to make specific findings of fact on whether there was infliction of fear of imminent domestic violence.

North Dakota law forbids sex bias in custody determinations. Between the mother and father, whether married or unmarried, there is no presumption as to which parent will better promote the best interests and welfare of the child. An obligor is underemployed if the obligor's gross income from earnings is significantly less than this state's statewide average earnings for persons with similar work history and occupational qualifications.

The Department of Corrections and Rehabilitation has broad authority under N.D.C.C. § 54-23.3-01 to supervise offenders and probationers when directed by the district court. This Court exercises its supervisory jurisdiction rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases when no adequate alternative remedy exists.

The August 1, 2021 amendment to N.D.C.C. § 12.1-32-07(6) does not apply retroactively. Therefore, upon revocation of a conviction and sentence entered prior to August 1, 2021, a district court's ability to resentence a defendant is limited to the previously imposed, but suspended, sentence.

Rule 60(a), N.D.R.Civ.P., was designed to allow district courts to correct errors created by oversight or omission. Rule 60(a) does not authorize the court to change what has been deliberately done.

In an appeal from a motion to dismiss under N.D.R.Civ.P. 12(b)(6), the complaint is construed in the light most favorable to the plaintiff and well-pleaded allegations are accepted as true. Undue influence is improper influence exercised in such a way and to such an extent as to destroy a person's free agency or voluntary action by substituting for the person's will the will of another. In nontestamentary cases, undue influence requires three factors be established: (1) A person who can be influenced (2) The fact of improper influence exerted and (3) Submission to the overmastering effect of such unlawful conduct. The law does not condemn all influence, only undue influence.

A part must preserve an issue in district court before it can be reviewed on appeal. A party must preserve a claim of error, as it relates to the admissibility of evidence, by objecting or moving to strike the evidence on record and stating a specific ground for exclusion. This Court will exercise discretion rarely to consider issues not preserved in post-conviction proceedings, and will do so only if the error is plain and seriously affects the fairness, integrity, or public reputation of judicial proceedings. A statement is not hearsay when it is offered simply to prove the statement was made. A petitioner at a post-conviction hearing is permitted to testify about the advice given to them by counsel as long as the testimony is submitted to simply show the advice was verbalized. Advising a defendant that the defendant can deal with a material piece of evidence after a defendant has pled guilty and been sentenced by simply retracting or withdrawing the plea falls below an objectively reasonable standard of a defense attorney.

Once the State moves for summary judgment on a post-conviction application, the defendant must provide evidentiary support for their application in response to the State's motion. Summary judgment on a post-conviction application is proper when the defendant fails to provide evidentiary support to show a genuine issue of material fact.

In a negligence action, a proximate cause is a cause which, as a natural and continuous sequence, unbroken by any controlling intervening cause, produces the injury, and without which it would not have occurred. A court will not disturb a jury's damages verdict unless the verdict is so excessive or inadequate as to be without evidentiary support. The jury must determine the damages to which a party is entitled within reasonable limits, based upon the evidence. If those limits have been exceeded, it is the court's duty to make a proper reduction or grant a new trial.

Law enforcement exceeds its community caretaking function when it opens the door of a sleeping occupant's parked semi-truck and steps onto the running boards in an attempt to gather information without first attempting to get a response from outside of the vehicle. Under prong two of the inevitable discovery doctrine, the State must prove that the evidence would have been found without the unlawful activity and must show how the discovery of the evidence would have occurred.

A motion to relocate is not necessary when residential responsibility has not previously been established. Therefore, consideration of the Stout-Hawkinson factors is not necessary when the district court originally determines parental responsibility of parents living in different states. The purpose or motive for a unilateral move is one of the many factors courts should consider and weigh when determining parental responsibility.

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

Order terminating parental rights summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (7).

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

This Court exercises its supervisory jurisdiction when no adequate alternative remedy exists and not merely because the appeal may involve an increase of expense or an inconvenient delay.

A district court's order regarding primary residential responsibility and valuation and distribution of the martial estate is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

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

The district court order denying a defendant's petition for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

The district court judgment affirming an administrative suspension of a defendant's driver's license is summarily affirmed under N.D.R.App.P. 35.1(a)(5) and (7).

Judgship retained at Jamestown.

A planned unit development is a form of zoning ordinance which is interpreted under rules of statutory construction. Where an incorporated reference is subsequently modified or repealed, that change does not alter the meaning of the law incorporating that reference. A party is not required to exhaust administrative remedies prior to suit when the issue concerns the interpretation of an unambiguous statute and does not need the exercise of an agency's expertise in making factual decisions. The interpretation of a restrictive covenant is generally governed by rules for interpretation of a contract. Restrictive covenants will be given full effect when clearly established. Whether a fiduciary relationship exists is generally a question of fact, dependent upon a showing of special circumstances. Violating a requirement in the planned unit development or restrictive covenants constitutes an "unlawful" act for purposes of a statutory private nuisance claim. Homeowners do not have a right to sunlight and open space on adjacent properties. Conduct that constitutes a breach of contract does not subject the actor to an action in tort for negligence, unless the conduct also constitutes a breach of an independent duty that did not arise from the contract. Section 9-10-01, N.D.C.C., codifies the general duty of care to abstain from injuring property or infringing upon rights. Neighbors who are members of a homeowners' association owe each other an ordinary duty of care. A homeowners' association owes homeowners reasonable care in approving construction plans. The fact finder determines how a reasonable homeowners' association would act under the circumstances and whether the association exercised reasonable care in performing its duties. Generally, a contractor is relieved of liability if he followed the contractee's plans or specifications which were defective or insufficient, and the defect or insufficiency caused the damage. Slander is a false and unprivileged publication other than libel. Intentional interference with contract requires a breach of contract. Unlawful interference with business requires an independently tortious or otherwise unlawful act of interference. Negligence requires a breach of duty.

We exercise our supervisory jurisdiction rarely and cautiously to rectify errors and prevent injustice in extraordinary cases in which no adequate alternative remedy exists. A party who files a complaint must serve notice of filing on the other parties, except upon defaulting parties. When a defendant has not appeared, he is not entitled to be notified of the motion for default judgment. When the plaintiff declares the defendant did not answer or otherwise appear and its claim is for a sum certain—as evidenced through declaration and written instrument—the court abuses its discretion by failing to direct entry of default judgment.

An order granting trustees' petition for sale of trust's surface interests and distribution of mineral interests to beneficiaries is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

A criminal judgment entered after a jury conviction of conspiracy to commit murder is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

A criminal judgment and sentencing for child abuse and child neglect are summarily affirmed under N.D.R.App.P. 35(a)(2) and (4).

A criminal judgment entered following denial of a motion to suppress evidence is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A district court's judgment entered after a jury convicted the defendant of aggravated assault with permanent loss or impairment and reckless endangerment with extreme indifference is summarily affirmed under N.D.R.App. 35.1(a)(3).

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

An order denying an application for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Terrorizing circumstances are threats of violence or dangerous acts made with an intent to induce fear. No precise words are necessary to convey a threat, and may be bluntly spoken or done by innuendo or suggestion. A threat often takes its meaning from the circumstances in which it is spoken, and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited.

When a post-conviction relief applicant seeks to withdraw a guilty plea based upon ineffective assistance of counsel, the applicant must satisfy a two-prong test by showing (1) his counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's errors, the applicant would not have pleaded guilty and would have insisted on going to trial. Under the second prong, the district court is required to determine what the applicant would have done had he received competent advice—not what he would have done with the benefit of hindsight. Witnesses must testify from personal knowledge. Witnesses may use notes to refresh their recollection, but they may not testify directly from the notes. A district court has broad discretion to control the use of evidence to refresh memory.

A district court judgment terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Only an aggrieved party may appeal from an order or judgment. For purposes of appellate review, an aggrieved party is someone whose interests are adversely affected by a court's decision. A temporary restraining order is not a final appealable order. Individuals subject to a North Dakota Supreme Court Administrative Rule 58 vexatious litigant prefiling order may not raise issues on appeal concerning motions they did not have authority to file.

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

The supreme court invokes its original jurisdiction only in cases publici juris and those affecting the sovereignty of the state, its franchises and prerogatives, or the liberties of its people. The supreme court has exercised original jurisdiction in cases where the separation of coequal branches of government and their respective authority have been challenged. Constitutional provisions are generally given their plain, ordinary, and commonly understood meaning. The overriding objective is to give effect to the intent and purpose of the people adopting the constitutional provision. The intent and purpose of constitutional provisions are to be determined, if possible, from the language itself. Under North Dakota Constitution Article IV, § 13, "[n]o bill may embrace more than one subject, which must be expressed in its title." When a bill embraces multiple subjects, all of which are expressed in its title, the whole bill is void due to the manifest impossibility of choosing which parts of the bill are valid and which are void. A court's attempt to choose between the provisions would improperly inject it into the Legislature's domain.

Lawyer reprimaned and placed on probation.

The North Dakota Department of Transportation has authority to conduct proceedings to suspend an operator's license if law enforcement has provided it with information essential to showing suspension may be warranted under the law. The Department lacks authority to suspend an operator's license when all breath and blood alcohol test results are not provided to the Department.

A district court must specially state facts when granting a disorderly conduct restraining order, which allow a reviewing court to understand the basis of the decision. Section 28-26-01, N.D.C.C., applies to awards of attorney's fees by the district court, not the Supreme Court.

The sentencing factors set forth in N.D.C.C. § 12.1-32-04 apply in revocation proceedings. Although entitled to consideration, the sentencing factors do not control the district court's discretion, are not an exclusive list of all a court may consider, and need not be explicitly referenced in fixing a criminal sentence.

The district court order denying a defendant's motion to suppress is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

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

There is no presumption in North Dakota law for or against equal residential responsibility. Primary caretakers do not receive presumptive status but may receive recognition in residential responsibility determinations. A holiday schedule is not clearly erroneous if it is in the best interests of the child. Tie-breaking decision-making authority must be awarded in the best interests of the child.

Under N.D.R.Crim.P. 29(a), the district court must enter judgment of acquittal upon a defendant's motion if the evidence presented at trial is insufficient to sustain a conviction. When the sufficiency of evidence to support a criminal conviction is challenged on appeal, the record is reviewed to determine if there is competent evidence allowing the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction. The defendant bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict.

The tort of battery exists at common law. A person is civilly liable for offensive-contact battery if he or she (1) acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (2) an offensive contact with the person of the other directly or indirectly results. North Dakota is a notice pleading state. North Dakota's rules do not require plaintiffs to allege every element of their claim. The formal character of a complaint does not strictly determine the cause of action. Whether to abrogate a common law claim is a policy matter for the Legislature to decide. Section 28-01-46, N.D.C.C, which requires plaintiffs to submit an affidavit containing an expert opinion to support a prima facie case of professional medical negligence, does not apply to a claim for the intentional tort of battery.

A criminal judgment entered after a jury conviction of harassment is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

A juvenile court order denying petition for guardianship of a child is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

The 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 district court's judgment sentencing a defendant to 55 years of incarceration is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Under N.D.C.C. § 12.1-32-08, a district court may enter restitution for damages or expenses sustained by a victim that are immediate, intimate, causally connected and directly related to the criminal offense the defendant pleaded guilty or was found guilty.

To comply with the requirements of N.D.C.C. § 25-03.1-21(1), the district court must find by clear and convincing evidence that alternative treatment is not adequate or hospitalization is the least restrictive alternative. However, we cannot order a less restrictive alternative even if it would be sufficient if evidence shows there is no such program currently available.

Judgeship retained at Grand Forks.

When a defendant has previously filed a post-conviction relief application, 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. When a pre-filing order is in effect, a district court must make the required initial determinations whether a particular litigant's proffered papers will be filed before ruling on the merits of the proposed filing. Orders denying leave to file are not appealable.

This Court only has jurisdiction to review judgments which are timely appealed. If we conclude the attempted appeal fails for lack of jurisdiction, we have the duty to dismiss the appeal sua sponte. A motion under N.D.R.Civ.P. 60 does not toll the time to appeal unless the motion is served and filed no later than 28 days after notice of entry of judgment. This Court does not consider issues which are not adequately articulated, supported, and briefed.

A defendant moving to withdraw his guilty plea before sentencing bears the burden of establishing a fair and just reason exists. Among the factors that a district court may consider in determining whether a fair and just reason exists to withdraw a guilty plea before sentencing are: (1) the amount of time that has passed between the entry of the plea and the motion to withdraw (2) defendant's assertion of innocence or a legally cognizable defense to the charge (3) prejudice to the government (4) whether the plea was knowing and voluntary (5) whether the plea was made in compliance with Rule 11, N.D.R.Crim.P. (6) whether adequate assistance of counsel was available to the defendant (7) the plausibility of the reason for seeking to withdraw (8) whether a plea withdrawal would waste judicial resources and (9) whether the parties had reached or breached a plea agreement. A defendant who voluntarily pleads guilty waives the right to challenge nonjurisdictional defects, including alleged violations of constitutional rights that occur before the guilty plea.

North Dakota Rule of Criminal Procedure 11(d) governs the withdrawal of a guilty plea. To withdraw a guilty plea after the court has accepted the plea but before sentencing, a defendant must show a fair and just reason for the withdrawal.

When the intent element of terrorizing is met based on reckless disregard of the risk, awareness of the risk is not required if the absence is due to self-induced intoxication. Preventing arrest under N.D.C.C. § 12.1-08-02 includes not only preventing the arrest but also effecting such an arrest. Preventing law enforcement actions such as being placed in handcuffs or being secured for transport could be the basis for a preventing arrest charge.

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

A criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

District courts must substantially comply with N.D.R.Crim.P. 11 to ensure a defendant knowingly and voluntarily enters a guilty plea. The Court remands to provide the State the opportunity to file transcripts to prove the district court substantially complied with N.D.R.Crim.P. 11.

When a district court's order granting summary judgment is entered on a fully submitted motion without any request for oral argument, and the order fully resolves the pending claims, it may not be necessary for the court to specifically address the remaining motions. A district court does not err in cancelling a hearing set by the court if its notice was issued after the time for the parties to request a hearing has expired and neither party made a request. A party opposing summary judgment must explain the connection between the factual assertions and the legal theories in the case. It cannot leave the district court the chore of determining if there are nonbriefed issues material to the claim for relief.

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

A movant under N.D.R.Civ.P. 60(b) has the burden of establishing sufficient grounds for disturbing the finality of the judgment. A disregard of service of process does not constitute mistake, inadvertence, or excusable neglect. Bare assertions without credible facts or specific legal grounds do not give rise to an allegation of a meritorious defense.

An issue will not be addressed on appeal when an appellant fails to raise it in the district court or brief it under the obvious error standard of review. The standard for reviewing the sufficiency of evidence is the same for both a bench trial and a jury trial. A conviction will not be set aside if competent evidence allows the trier of fact to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.

A district court must have sufficient factual findings to show a sexually dangerous individual continues to have an inability to control his behavior. Past conduct is relevant and may be considered with present conduct to determine whether an individual continues to have an inability to control his behavior. The district court's findings, showing not just a lack of progress, but a lack of participation, are sufficient to show the individual continues to have an inability to control his behavior.

A district court's finding of domestic violence may be based on actual harm, or the infliction of fear of imminent harm. When a petition for a domestic violence protection order is based on the infliction of fear of imminent harm, the petitioner must show a fear of actual or imminent physical harm, bodily injury, or assault. A district court must make factual findings sufficient to understand the basis for its decision.

A person has a reasonable expectation of privacy in a closed, rented room. A home owner does not have common authority to consent to a search of a rented room in their home. A reasonable officer would not believe a homeowner could consent to the search of a closed, rented room in their home.

Displaying a fictitious operator's license is a punishable offense under N.D.C.C. § 39-06-40.

A defendant fails to preserve an issue relating to constitutionally protected activities for appeal when they failed to properly raise a constitutionally protected activity defense to the district court through a motion in limine and instead made only a N.D.R.Crim.P. 29 motion at trial without providing any legal basis for the claim.

The standard of review for a criminal trial before the district court without a jury is the same as a trial with a jury. A criminal defendant bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict. When the sufficiency of evidence to support a criminal conviction is challenged, this Court will not reweigh conflicting evidence or judge the credibility of the witnesses. This Court merely reviews the record to determine if there is competent evidence allowing the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction. Where a claim of insufficient evidence is preserved for appeal, related issues of statutory interpretation are also preserved for appeal. Legislative history of a statute will not be considered without a showing that the statute is ambiguous.

A district court order and judgment are reversed, and the case is remanded for entry of an order compelling arbitration. In construing arbitration clauses, courts have categorized arbitration clauses as either broad or narrow. A broad arbitration provision covers all disputes arising out of a contract to arbitrate a narrow provision limits arbitration to specific types of disputes. If the arbitration clause is broad in scope, the court will defer to arbitration on any issues that touch on contract rights or contract performance.

A district court must specially state facts when granting a disorderly conduct restraining order, which allow a reviewing court to understand the basis of the decision. Section 28-26-01, N.D.C.C., applies to awards of attorney's fees by the district court, not the Supreme Court.

To be convicted of accomplice to attempted murder, the accused must have intended to aid in killing. Accomplice to attempted "knowing" murder under N.D.C.C. §§ 12.1-03-01 and 12.1-16-01(1)(a) is a non-cognizable offense. The error was harmless if we are convinced the error did not contribute to the verdict. Our determination of whether an error was harmless looks at the effect of the error on this jury, rather than speculating whether a hypothetical jury would convict the defendant absent the error. When no rational jury could find that the defendant committed the relevant criminal act but did not intend to cause injury and the erroneous instruction was not argued to the jury, the error was harmless to that particular jury.

The petitioner for a disorderly conduct restraining order bears the burden of demonstrating how a respondent's conduct affected the petitioner's safety, security, or privacy. Section 12.1-31.2-01, N.D.C.C., requires the district court to make specific findings concerning the respondent's intent.

Res judicata prevents relitigation of claims that were raised, or could have been raised, in prior actions between the same parties or their privies. Collateral estoppel precludes litigation of issues actually litigated and necessary to the outcome of the prior case, even if such issues are subsequently presented as part of a different claim. Collateral estoppel requires a final judgment on the merits. An aggrieved party must appeal a local governing body's decision rather than seek injunctive or declaratory relief against the enforcement of the decision. Landowners are not foreclosed from challenging whether a drain improvement project is authorized by law in defending against an eminent domain action. A water resource district may not accumulate a fund exceeding the six-year maximum maintenance levy or obligate the district for costs beyond the maximum maintenance levy without the approval of the majority of the landowners. Before property can be taken it must appear that the use to which it is to be applied is a use authorized by law. The public uses authorized by N.D.C.C. § 32-15-02(3) carry the additional requirement that the mode of apportioning and collecting the costs of such improvement shall be such as may be provided in the statutes by which the same may be authorized.

A district court does not err when reducing a defendant's sentence within the 120-day period mandated by Rule 35(b), N.D.R.Crim.P. It is mandatory under Rule 35(b), N.D.R.Crim.P., that the sentencing judge, whenever reducing a sentence as permitted by Rule 35, give his reasons for the reduction. 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. Neither the district court nor the State may invoke section 25 rights on behalf of a victim and when no individual exercises the victim's right to participate in any post-judgment processes and procedures, a court does not err when it issues an order on a post-judgment without the victim's consideration.

An appeal to determine if a person remains a sexually dangerous individual must be taken within 30 days of an entry of an order denying discharge.

When a defendant pleads guilty on open and unconditional plea, the defendant waives his right to challenge the rejection of a plea agreement. During sentencing, failure to preserve an objection precludes a later assertion unless a defendant establishes obvious error. Obvious error is exercised only with extreme caution.

A district court judgment is reversed because the court misapplied the law by applying the statute of frauds when it was not specifically pled under N.D.R.Civ.P. 8. Rule 8(c), N.D.R.Civ.P., requires the statute of frauds to be specifically pled as an affirmative defense.

The obligation to pay royalties under an oil and gas lease is a contract contained in a conveyance or instrument affecting title to real property within the meaning of N.D.C.C. § 28-01-15(2). This ten-year statute of limitations applies to a claim for untimely payment of royalties under an oil and gas lease. If an operator fails to notify a mineral owner of a title dispute affecting the owner's distribution of royalties and fails to pay royalties within 150 days after oil or gas produced under the lease is marketed, and cancellation of the lease is not sought, the operator must pay interest on the unpaid royalties at 18% per annum until paid.

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

Once a contract has been entered into, mutual assent of the contracting parties is essential for any modification of the contract. To establish a modification, the party asserting the modification must show that there was an agreement of the parties on all essential terms of the contract modification, and that the parties intended the new terms to alter the contract.

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

A principal that allows an ostensible agent act with apparent authority may be bound by the agent's actions. A principal may expressly or impliedly ratify an ostensible agent's acts by conduct or failure to timely disavow the acts. A third party is required to exercise diligence and prudence in determining whether an agent acted for a principal. N.D.C.C. § 35-03-05 provides a standard mortgage form.

Reopening the record is an evidentiary issue subject to the abuse of discretion standard. If the obligor fails to provide reliable information regarding his gross income, and that information cannot be reasonably obtained from other sources, the court must impute income and apply the method providing the greatest amount. District courts must use a source demonstrating statewide average earnings to determine the obligor's income for child support calculations if the obligor fails to provide sufficient reliable information for determining the obligor's income. Whether to award attorney's fees in conjunction with a discovery violation is generally within the discretion of the district court.

A brief is deficient if it fails to raise a legal argument, including the authorities on which it relies. A district court order and judgment granting summary judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(8).

An order denying a petition for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

An applicant for post-conviction relief has two years from when the conviction becomes final to apply for relief, unless newly discovered evidence is found. Newly discovered evidence for purposes of post-conviction relief must establish that the applicant did not engage in conduct leading to the underlying conviction.

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 criminal judgment revoking probation and resentencing a defendant is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

This Court's review of a sentence is generally confined to whether the district court acted within the statutory sentencing limits or substantially relied on an impermissible factor. This Court does not consider arguments that are not adequately articulated, supported, and briefed.

A district court judgment denying an application for postconviction relief is affirmed. The district court did not err by considering evidence outside the record when it followed the procedure of Rule 201, N.D.R.Ev., providing notice to the parties of its intent to judicially notice the clerk's trial notes before declining to take judicial notice of the clerk's notes. The district court's mere exposure to inadmissible evidence is not error because we presume the court considers only admissible evidence. We have consistently acknowledged a judge is capable of distinguishing between admissible and inadmissible evidence when deliberating the ultimate question.

A temporary restraining order is a type of injunction that is brief in duration and meant to maintain the status quo until the district court can make a determination on the merits of a petition. After a final order has been issued, questions concerning the propriety of earlier temporary injunctive orders are moot. Disorderly conduct is analyzed in the same manner for both civil and criminal cases because the reasonable grounds for a restraining order are synonymous with probable cause for an arrest. The elements of criminal disorderly conduct by harassment are the same as those required to prove disorderly conduct in the context of a petition for a restraining order. A petitioner for a disorderly conduct restraining order must prove his case before the district court in a full hearing. Because a restraining order constrains a person's liberty and entails certain stigma, a respondent has a due process right to a fair hearing, including reasonable notice or opportunity to know of the claims of opposing parties, along with the opportunity to rebut those claims. The purpose of an appeal is to review the actions of the trial court, not to grant the appellant an opportunity to develop and expound upon new strategies or theories. Issues or contentions not raised in the district court cannot be raised for the first time on appeal.

The Court does not issue advisory opinions and will ordinarily dismiss a moot appeal. An appeal is moot when there is no actual controversy left to be determined because events have occurred that make it impossible for the Court to issue relief. There is an exception to the rule against advisory opinions for appeals from district court decisions that continue to have adverse collateral consequences for an appellant. For the collateral consequences exception to apply, there must be a reasonable possibility that collateral consequences will occur. This requires an examination of the specific circumstances of a case. The issuance of a disorderly conduct restraining order without evidence to support a finding that a respondent engaged in disorderly conduct amounts to an abuse of discretion.