Slip opinions decided 2024 — North Dakota Reports

A district court order transferring the matter to juvenile court is not an order quashing an information providing the State the right to appeal.

An appeal from a district court judgment entered after a bench trial on a claim for unpaid legal fees and counterclaim is affirmed, and remanded for consideration of attorney's fees for this appeal. "If the defendant elects to remove the action from small claims court to district court, the district court shall award attorney's fees to a prevailing plaintiff." N.D.C.C. § 27-08.1-04. A party removes a small claims matter to district court at her own peril. After our decision in Johnson v. Menard, Inc., 2021 ND 19, 955 N.W.2d 27, N.D.C.C. § 27-08.1-04 was amended consistent with that decision to state: "If the defendant appeals a district court judgment to the supreme court, the supreme court shall award reasonable attorney's fees to the prevailing appellee." Although we have concurrent jurisdiction to determine a reasonable award of attorney's fees on appeal, we prefer the district court take evidence and make such findings in the first instance.

An order issued without notice to the parties is not appealable under N.D.C.C. § 28-27-02(7). Relief from an order made without notice must first be sought in the district court.

The August 1, 2021 amendment to N.D.C.C. § 12.1-32-07(6) does not apply retroactively. When an original sentence was entered prior to August 1, 2021, the pre-amendment version of N.D.C.C. § 12.1-32-07(6) limits a district court's ability to resentence a defendant to no more than the previously imposed, but suspended, sentence. The pre-amendment version of N.D.C.C. § 12.1-32-07(6) restrains a district court's discretion to impose consecutive sentences, in cases where the original sentence was imposed before the statute was amended, and the suspended sentence was to run concurrently.

The State's accompanying statement filed with the notice of appeal must explain the relevance of the suppressed evidence and not merely paraphrase the statutory language. But the Court may consider the appeal if the facts clearly demonstrate the relevance of the suppressed evidence. The scope of a driver's consent to search a vehicle may or may not extend to all property in the vehicle. Whether a driver's consent to search a vehicle extends to particular containers within the vehicle may depend on whether the container has identifying markings or characteristics indicating ownership by someone other than the driver. The State has the burden to prove a person consented to a search. To sustain a finding of consent, the State must show affirmative conduct by the person alleged to have consented that is consistent with the giving of consent, rather than merely showing that the person took no affirmative actions to stop the police from searching.

Rule 28(b)(7)(B), N.D.R.App.P., requires an appellant's brief to have a statement of the applicable standard of review and a citation to the record showing that the issue was preserved for review, or a statement of grounds for seeking review of an issue that was not preserved. A preserved evidentiary issue is reviewed under the abuse of discretion standard, and an unpreserved evidentiary issue is reviewed for obvious error. There was sufficient evidence for a jury to draw an inference reasonably tending to prove the charged offense.

N.D.C.C. § 12.1-32-02(2) requires a district court include any credit for sentence reductions in the criminal judgment.

An administrative agency does not afford a petitioner a fair hearing when the agency receives exhibits into evidence without first providing the petitioner the opportunity to examine them.

A juvenile court errs when it relies on facts which are outside of the evidentiary record when exercising its discretion to terminate parental rights.

Before we consider the merits of an appeal, we must first confirm we have jurisdiction. A motion filed under N.D.R.Civ.P. 59(j) and 60(b)(6) within 28 days of the notice of entry of judgment or order tolls the time to appeal under N.D.R.App.P. 4(a)(3)(A)(iv) and (vi). "Genetic father" means the man whose sperm fertilized the egg of a child's genetic mother. If the father-child relationship is established under the presumption of paternity under subdivision a, b, or c of subsection 2 of section 14-20-07, the term means only the man for whom that relationship is established. A presumption of paternity requires the presumptive father, for the first two years of the child's life, to reside in the same household with the child and openly hold the child out as his own. When the spouse of a genetic parent adopts an individual, the individual adoptee obtains a parent-child relationship with the adoptive step-parent but may still inherit from the other genetic parent.

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

A district court divorce judgment and order denying cross motions for contempt are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

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

An order denying a petition for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

A two-pronged test is used when determining whether an interlocutory order is appealable. First, the order appealed from must meet one of the statutory criteria of appealability set forth in N.D.C.C. § 28-27-02. If it does, then Rule 54(b) under the North Dakota Rules of Civil Procedure must be complied with. An appeal will not be considered in a multi-claim or multi-party case which disposes of fewer than all claims against all parties unless the district court has first independently assessed the case and determined that a Rule 54(b) certification is appropriate.

Whether a party has breached a contract is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. Generally, the prevailing party to a suit, for the purpose of determining who is entitled to costs, is the one who successfully prosecutes the action or successfully defends against it, prevailing on the merits of the main issue, in other words, the prevailing party is the one in whose favor the decision or verdict is rendered and the judgment entered. A successful litigant is not entitled to attorney's fees unless they are expressly authorized by statute or by agreement of the parties. Under N.D.C.C. § 32-03-09, no damages can be recovered for a breach of contract if they are not clearly ascertainable in both their nature and origin. An award of costs under N.D.C.C. § 28-26-10 is discretionary, and a district court's decision on an award of disbursements under N.D.C.C. § 28-26-06 will be overturned on appeal only if an abuse of discretion is shown. This Court and the district courts possess concurrent jurisdiction to award attorney's fees on appeal however, a preference exists that the initial determination be made by the district court.

This Court only decides those issues which are thoroughly briefed and argued, and a party waives an issue by not providing adequate supporting argument. Summary dismissal of an application for postconviction relief is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

In determining if an out-of-court statement is admissible, the district court must first determine if the statement qualifies as hearsay under the rules of evidence. If not hearsay, then the statement is admissible if it is hearsay, the court must then determine if it qualifies as an exception to the hearsay rule as outlined in the N.D.R.Ev. 803 and N.D.R.Ev. 804. The excited utterance exception outlined in N.D.R.Ev. 803(2) is permitted regardless of the declarant's availability to testify as a witness. The amount of time that is permissible to lapse between the event and the statement, to allow the statement to qualify under the excited utterance exception, is more likely to be on the high end of the range permitted when the statement is made by a child, as a young child will likely remain excited longer than adults. Even when a hearsay statement falls within an exception to the rule, it may not be admitted if the statement is testimonial in violation of the Sixth Amendment.

The requirements of the Uniform Postconviction Procedure Act, N.D.C.C. ch. 29-32.1, must be satisfied before an applicant can obtain relief under the Act. When an applicant for postconviction relief is put to his proof, he must present competent admissible evidence by affidavit or other comparable means to obtain an evidentiary hearing. Unsupported conclusory allegations are insufficient.

Complete valuation of a remainder interest includes consideration of the debt secured by a mortgage on the real estate. A court can value personal property within the range of evidence supplied. If parties fail to value, or give little value, to marital property, the district court may award no value to the property. A district court must weigh the evidence to determine which parent will receive primary residential responsibility. This Court will not retry the district court's findings on best interest factors. A district court can impute wages under N.D. Admin. Code § 75-02-04.1-07(3) when a party is underemployed. If a party is employed, the court can impute wages if the party does not meet an exception under N.D. Admin. Code § 75-02-04.1-07(5). A district court does not abuse its discretion by reserving the issue of interim child support, and later denying a retroactive award of child support, when the parties made equalizing payments for overall expenses. Recovery of attorney's fees is addressed to the district court's discretion.

The time to appeal a final administrative order begins when notice of the final order is mailed. The time to appeal a final administrative order is not extended because the order is mailed.

For a district court to acquire subject matter jurisdiction over an appeal from an administrative agency decision, the appellant must satisfy the statutory requirements for perfecting an appeal. By statute, a person aggrieved by the Department of Water Resources' action or decision must request a hearing within 30 days and prior to appealing. An information-gathering public meeting is not an adjudicative proceeding hearing.

A prerequisite to obtaining an order establishing the authority of a domiciliary foreign personal representative is proof of the authority to act as the personal representative in the foreign jurisdiction, meaning an active appointment in the foreign jurisdiction. Chapter 30.1-24, N.D.C.C., gives a district court the authority to consider petitions to initiate foreign probate proceedings. The issuance of an order without satisfaction of all of the statutory prerequisites does not divest subject matter jurisdiction. It is instead an error in the application of the law, which may furnish grounds for appeal, but it does not invalidate the judgment under N.D.R.Civ.P. 60(b)(4). To grant a motion under N.D.R.Civ.P. 60(b)(6), the district court must make a finding that the motion was brought within a reasonable time otherwise, the motion must be denied. A trustee with an interest in a disputed mineral interest that it contends is intended to benefit the trust has sufficient interest in the probate proceedings disposing of those interests, to possess standing. The district court may only take judicial notice of a fact that is not subject to reasonable dispute because it is either generally known within the court's territorial jurisdiction or it is a fact that can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

A district court has broad discretion over the presentation of evidence and conduct of a trial, including when to certify a hostile witness. After a district court makes a finding of actual or imminent domestic violence, a petitioner does not need to prove actual or imminent domestic violence to maintain a domestic violence protection order. A party is only entitled to have a district court decide an issue if the party has standing to raise the issue.

There is not a time limit for a motion attacking a void judgment under Rule 60(b)(4), N.D.R.Civ.P. A district court does not lose subject matter jurisdiction if it misapplies the law. A district court signing an order before the time to object to proposed findings expire is harmless error.

Under the Administrative Agencies Practice Act, courts exercise limited appellate review of administrative agency decisions. A vocational rehabilitation plan is appropriate if it meets the statutory requirements and gives the injured worker a reasonable opportunity to obtain substantial gainful employment. While the validity of a vocational rehabilitation plan is assessed at the time it was formulated, a claimant's pre-existing, non-work-related medical limitations are taken into account as they existed at the time of the work-related injury.

A district court's finding of contempt will only be overturned if the court abused its discretion. A district court's award of attorney's fees will only be overturned if the court abused its discretion. This Court does not consider arguments which are not adequately articulated, supported, and briefed.

Lawyer suspended and placed on two-year suspension with conditions.

A district court can accept a guilty plea without accepting a plea agreement. When considering a plea agreement, the court can reject a guilty plea until it accepts the plea agreement or sentences the defendant. A defendant cannot receive the benefit of a bargained for plea agreement when the State and the defendant are not bound by the whole plea agreement. The judge's comments in court explaining his decision does not create bias when they are made before a jury is empaneled, the jury does not hear the comments, and the comments are not part of the jury's deliberations.

A court's determination that a petitioner did not establish a prima facie case to support an award of nonparent visitation is reviewed de novo. When we interpret and apply provisions in a uniform law, it must be construed to effectuate its general purpose and we may look to official editorial board comments for guidance. When considering whether a parent is a consistent caretaker, the 12-month requirement of N.D.C.C. § 14-09.4-03(2)(a) need not be consecutive months and need not be immediately preceding the petition when the nonparent caretaker continues significant contact with the child. A party seeking a nonparent visitation is entitled to an evidentiary hearing if he presents a prima facie case by alleging, with supporting declarations, sufficient facts which, if uncontradicted, would support an award of nonparent visitation. In determining whether a prima facie case has been established, the trial court must accept the truth of the moving party's allegations.

A district court must weigh all four Stout-Hawkinson factors when determining whether a moving parent can relocate to a different state with the children.

Lien priority usually is based on its date of perfection. North Dakota follows the "American Rule" by which successful litigants are not allowed to recover attorney's fees unless authorized by contract or statute. Appeals involving questions of first impression typically are not frivolous.

The August 1, 2021 amendment to N.D.C.C. § 12.1-32-07(6) does not apply retroactively. When a defendant's original conviction and sentence is entered on or after August 1, 2021, the pre-amendment version of N.D.C.C. § 12.1-32-07(6) does not apply to limit a district court's ability to resentence a defendant to no more than the previously imposed, but suspended, sentence.

A dismissal without prejudice is appealable if the judgment has the practical effect of terminating litigation in the plaintiffs' chosen forum. Administrative exhaustion is required when the issues raised in the case are within the jurisdiction of an administrative agency and there are issues of fact in dispute.

A juvenile court errs when it relies on facts which are outside of the evidentiary record when exercising its discretion to terminate parental rights.

A driver arrested for driving under the influence of alcohol was provided a reasonable opportunity to consult with counsel when he was permitted to use his cellphone to call a third party to help contact an attorney and made no additional requests or attempts to contact counsel.

Obvious error analysis does not apply to errors waived through the doctrine of invited error, unless a constitutional error is structural. Possession may be actual or constructive, and constructive possession is proven where evidence establishes that the accused had the power and capability to exercise dominion and control over the material.

We answer two certified questions from the United States District Court for the District of North Dakota regarding North Dakota's natural accumulation rule, which precludes liability for injuries caused by natural accumulations of snow and ice. The questions ask whether the accumulation rule extends to an oil well site in a rural area, and, if so, does it still apply if it conceals a condition substantially more dangerous than one normally associated with ice and snow. The natural accumulation rule relates to the threshold question whether a duty exists. The underlying rationale for the natural accumulation rule is reasonableness. The natural accumulation rule is generally applicable under North Dakota law with some exceptions. We answer the first question, "yes." The natural accumulation rule applies to an oil well site in a rural area. We answer the second question, "no." The concealment aspect of snow and ice is outside the scope of our natural accumulation rule.

A district court's order continuing an individual's treatment at the North Dakota State Hospital is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A criminal judgment is reversed because the district court abused its discretion by admitting several trial exhibits that were not properly authenticated under N.D.R.Ev. 901 and are inadmissible hearsay that lacked sufficient foundation as records of regularly conducted activity under N.D.R.Ev. 803(6).

A juvenile court order terminating parental rights is reversed. The court's findings on termination are clearly erroneous because the findings are not supported by evidence in the record. The juvenile court abused its discretion by relying on affidavits in the file that were not received into evidence.

A district court did not abuse its discretion in denying a member's request for certain information in a board-managed limited liability company under the applicable statute governing an LLC member's right to information. A district court did not abuse its discretion in awarding attorney's fees after denying a motion to compel discovery. A facially valid motion to compel requires two components, an actual certification document and performance. Performance has two elements: the first element of performance is good faith, and the second element is conferring or attempting to confer.

Judgeship retained at Washburn.

Assignments and deeds are interpreted in the same manner as contracts, with the primary purpose to ascertain and effectuate the parties' or grantor's intent. The primary objective in interpreting a statute is to determine the intent of the legislation. The right to an accounting in all cases is a preliminary question which must be answered in the affirmative before the actual accounting is ordered. The party claiming the relief has the burden of proving its right to the accounting. If not so proved, there is no right to an accounting and the cause is to be dismissed.

A district court's order denying a defendant's withdrawal of guilty pleas is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4). When the record on direct appeal is inadequate to determine whether the defendant received ineffective assistance of counsel, the defendant may pursue the ineffectiveness claim at a postconviction proceeding where an adequate record can be made. A defendant reserves the right to appeal non-jurisdictional claims and defenses when the defendant enters a conditional plea of guilty under N.D.R.Crim.P. 11(a)(2). A district court's decision on a motion for recusal alleging bias is reviewed under the abuse of discretion standard. A criminal defendant's right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and by N.D. Const. art. I, § 12. A four-factor balancing test is used to evaluate the validity of a speedy trial claim: length of the delay, reason for the delay, proper assertion of the right, and actual prejudice to the accused. The abuse of discretion standard applies to a district court's decision to deny a continuance and allow an information to be amended. When a party fails to provide supporting argument for an issue he is deemed to have waived that issue. Arguments not adequately articulated, supported, and briefed are not considered on appeal.

The scope of an opening statement rests largely in the discretion of the trial court, and this Court will not reverse a conviction on the ground that the opening statement was prejudicial unless there is a clear abuse of that discretion. Forfeiture is the failure to timely assert a right, which is reviewed for obvious error. The burden to show an obvious error is on the appellant. A denial of a motion for judgment of acquittal is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

An order denying a petition for adoption is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

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

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

A title dispute does not establish a taking. The State may protect its interests in a title dispute and must do "something more" than assert title to complete a taking. Suspension of royalty payments was lawful under N.D.C.C. § 47-16-39.1 when there is a dispute of title that would affect distribution of royalty payments.

Conduct constituting a breach of contract does not create a tort for negligence, unless the defendant's conduct also establishes a breach of an independent duty that does not arise from the contract. Speculation is not enough to defeat a motion for summary judgment, and when reasonable persons can reach only one conclusion from the evidence a court may grant summary judgment. This Court does not review issues which are raised for the first time on appeal.

We exercise our authority to issue supervisory writs rarely and cautiously on a case-by-case basis and only to rectify errors and prevent injustice in extraordinary cases when no adequate alternative remedy exists. Our authority to issue a supervisory writ is discretionary. We generally will not exercise our supervisory jurisdiction where the proper remedy is an appeal. The plain language of the statute gives the Department the authority to approve the secondary process of the risk assessment and the responsibility to perform that secondary process, and the statutory definition of "risk assessment" is not a rule of procedure subject to being superseded by court rule.

If a defendant's crime and revocation of probation occurred after the 2021 amendment to N.D.C.C. § 12.1-32-07(6), a district court may resentence the defendant up to the maximum allowed at the time of his original sentence.

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

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

An appellant's argument must contain the appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies, and citation to the record showing that the issue was preserved for review or a statement of grounds for seeking review of an issue not preserved. A party waives an issue by not providing supporting argument and, without supportive reasoning or citations to relevant authorities, an argument is without merit. The Court will not consider an argument that is not adequately articulated, supported, and briefed, or engage in unassisted searches of the record for evidence to support a litigant's position.

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

An invited error of a non-structural issue will not be reviewed by this Court under the Invited Error Doctrine. A sentence is illegal when the sentence is not within statutory limits or the sentence is unable to be served within statutory limits. A reviewing court must clearly understand the sentencing court's intent for the sentence and there must be no ambiguity for when probation begins.

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

If the district court determines a material change in circumstances has occurred, the court must consider whether changing primary residential responsibility is necessary to serve the child's best interests. When a trial court does not make required findings, it errs as a matter of law, and it is necessary to remand for additional findings.

When asserting a claim of obvious error, a defendant must show: (1) error (2) that is plain and (3) the error affects the defendant's substantial rights, if there is no error there is no reason to go further into the analysis. When the sufficiency of evidence to support a criminal conviction is challenged, the conviction rests on insufficient evidence only if no rational factfinder could have found the defendant guilty beyond a reasonable doubt when weighed in a light most favorable to the verdict.

A divorce judgment is reversed in part and remanded for clarification of the district court's findings regarding equitable distribution of the marital estate and a correct accounting of the distribution. All property held by either party, whether held jointly or individually, is considered marital property, and the district court must determine the total value of the marital property before making an equitable distribution. Separate property, even if it is inherited, must initially be included in the marital estate, but the property's origin may be considered when equitably dividing the estate.

A motion for mistrial is reviewed for an abuse of discretion or a manifest injustice would result. Granting a mistrial is an extreme remedy and should only be resorted to when a fundamental defect or occurrence in the trial proceedings exists that makes it evident that further proceedings would be productive of manifest injustice. Trial courts have wide discretion over the conduct of trial and the courtroom. A trial court does not abuse its discretion by granting a recess when jurors are ill or have other such emergencies. A criminal judgment entered after a jury found the defendant guilty of murder is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

A district court judgment denying an application for postconviction relief is affirmed. This Court does not reweigh credibility or resolve conflicts in the evidence.

We will not consider an appeal in a multi-claim lawsuit where the district court order disposes of fewer than all the claims against all the parties unless the court has determined that a certification under N.D.R.Civ.P. 54(b) is appropriate.

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

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

Rule 54(b), N.D.R.Civ.P., preserves our long-standing policy against piecemeal appeals. When this Court considers the merits in a case involving a N.D.R.Civ.P. 54(b) certification, it does so because the resolution of the issue on appeal will always need to be resolved and is separate from the issue left to be adjudicated. To establish a prima facie case of professional negligence, a plaintiff must produce expert evidence establishing the applicable standard of care, violation of that standard, and a causal relationship between the violation and the harm complained of. To warrant a finding that a person's conduct is the proximate cause of an injury, the injury must be the natural and probable result of the conduct and must have been foreseen or reasonably anticipated by that person as a probable result of the conduct. Mere speculation is not enough.

To prove negligence, a plaintiff must establish the existence of a duty, breach of that duty, and an injury proximately caused by the breach of duty. The employer of an independent contractor who retains control of part of the work owes a duty of care to the independent contractor' s employees to exercise the retained control with reasonable care. A property owner who hires an independent contractor may be held liable to the independent contractor and its employees for injuries resulting from hazards at the workplace when the property owner retains control over the work.

When this Court has made a legal pronouncement and remanded a case for further proceedings, the parties may not relitigate the issue and the district court is required to follow the terms of our decision. The district court has some discretion on the procedures used on remand. However, that discretion is not without bounds and must be exercised within the scope of our decision. Adverse or erroneous rulings do not, by themselves, demonstrate bias of a district court judge.

A criminal judgment entered after a conditional plea is reversed and remanded to allow for withdrawal of the guilty plea because law enforcement illegally entered the home without exigent circumstances. If a misdemeanant is fleeing law enforcement, then exigent circumstances are required to permit law enforcement to enter the misdemeanant's home.

Vacancy retained at Fargo

A two-step analysis is required to determine whether an order is appealable. First, for this Court to have appellate jurisdiction, the order being appealed must meet statutory criteria for appealability. Second, for this Court to consider the appeal at this time, the requirements of N.D.R.Civ.P. 54(b) must have been satisfied. Decisions have stated that this Court lacks appellate jurisdiction when an appellant fails to obtain N.D.R.Civ.P. 54(b) certification when required, but dismissal under Rule 54(b) is not for lack of appellate jurisdiction. The parties did not request Rule 54(b) certification. The case is remanded under N.D.R.App.P. 35(a)(3)(B) so that the district court may determine in the first instance whether a Rule 54(b) certification is appropriate.

A marital distribution does not need to be equal to be equitable, and while assessing a property division, a district court may consider the importance of preserving the viability of a business operation like a family farm. Liquidation of an ongoing farming operation or business is ordinarily a last resort. A district court property division granting one party a net estate of $3,224,357 while assigning them virtually no debt, and the other a net estate of $4,961,915 included all of the debt, almost no liquidity, and no retirement funds, was not clearly erroneous. A district court does not need to consider potential tax implications of a property division when the record failed to support a conclusion that the sale of the property was imminent, failed to indicate the tax liability, or quantified a specific liability to the court. A party is not entitled to an accrual of rent for the use of marital property during the pendency of divorce proceedings absent agreement or seeking district court intervention during the interim. Language in a right to first refusal that does not clarify if the right is triggered by a response to "any" offer made to purchase property or if it is triggered by a party's "acceptance" of an offer is ambiguous.

Changing the culpability level of the crime charged is not a modification of a statute. Under N.D.C.C. § 12.1-02-02(4), a lesser degree of culpability is satisfied if the proven degree of culpability is higher. The district court's failure to submit statutory definition of that term was not obvious error affecting defendant's substantial rights. It is not clearly established law in North Dakota that, where the State alleges multiple predicate felonies in a felony murder prosecution under N.D.C.C. § 12.1-16-01(1)(c), the district court must include an instruction that the jury must unanimously agree on the predicate felony to convict the defendant of murder. Not including separate verdict forms for each predicate felony was not obvious error. There was sufficient evidence to convict the defendant of murder.

To succeed in a challenge under Brady, the defendant must demonstrate the evidence was favorable to the defendant or plainly exculpatory. To preserve a sufficiency of the evidence challenge for appeal, the defendant must move for acquittal under N.D.R.Crim.P. 29 unless the district court committed obvious error.

The district court controls the scope and substance of opening and closing arguments, and a district court's decision will not be reversed absent an abuse of discretion. A party is not prejudiced by a counsel's improper arguments when the district court instructs the jury not to consider counsel's comments as evidence. A court may grant a new trial on grounds the jury awarded excessive damages appearing to have been awarded under the influence of passion or prejudice. To justify the granting of a new trial, passion and prejudice usually connote anger, resentment, hate, and disregard of the rights of others. When a jury awards excessive damages, under appropriate circumstances, the district court and this Court on appeal, may order a reduction of the verdict instead of a new trial or order that a new trial be had unless the prevailing party remits the excess damages.

Orders for revocation of probation are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

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 if an individual continues to have an inability to control his behavior. Failure to attend treatment might demonstrate inability to control behavior just as violation of other institutional rules. The district court's findings are sufficient to show the individual continues to have an inability to control his behavior.

Under Rule 30(a), N.D.R.App.P., a party's references to evidence in any document on appeal must cite to items in the record. This Court does not consider documents that are not in the certified record. After an initial custody decision has been made, parenting time modifications are governed by N.D.C.C. § 14-05-22(2) and by standards set forth in caselaw. A parenting plan must include a provision on decision making responsibility under N.D.C.C. § 14-09-30(2)(a), and that responsibility must be allocated in the best interests of the child, N.D.C.C. § 14-09-31(2). A district court's decision on parenting time and decision making responsibility is a finding of fact subject to the clearly erroneous standard of review.

Wholesale adoption of proposed findings of fact and conclusions of law is disapproved. District courts retain authority to revisit interlocutory orders until entry of final judgment. Under the doctrine of merger, the provisions of an executory contract merge into an instrument conveying real property. Absent fraud or mistake, the conveying instrument alone governs determination of the rights of the parties to the transaction. Recordation of a granting instrument is not necessary to effect a conveyance. Nor is it necessary for a plaintiff to present the original conveying instrument to prevail in quiet title action. In a quiet title action ownership may be established through evidence that a conveying instrument was delivered but subsequently lost. The equitable defense of laches may be available when a party delays enforcing his rights and a change in conditions during the delay results in prejudice to an adverse party. To have standing to litigate an issue a party must have suffered some injury from the putatively illegal action and the party must assert his own legal rights and interests and cannot rest his claim on the legal rights and interests of third parties. Parties may contract to a fee recovery standard that is either looser or stricter than statutory standards.

When interpreting a will the primary objective is to determine the testator's intent. Extrinsic evidence may be considered to resolve an ambiguity. A will is ambiguous if its language is susceptible to more than one reasonable interpretation. A personal representative is a fiduciary who shall observe the standards of care applicable to trustees. A personal representative may be liable to interested persons for damage or loss resulting from breach of the personal representative's fiduciary duty to the same extent as a trustee of an express trust. Whether a personal representative breached a fiduciary duty is a question of fact. A personal representative is entitled to receive reasonable attorney fees from an estate when he or she defends or prosecutes any proceeding in good faith, whether successful or not.

We summarily affirm the criminal judgment under N.D.R.App.P. 35.1(a)(2) and (7).

A criminal judgment for conspiracy to possess with intent to manufacture or deliver methamphetamine and unlawful possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

A witness testifies as an expert when the witness's answers are rooted exclusively in the witness's expertise or is not a product of the witness's investigation but instead reflects the witness's specialized knowledge. Under Rule 16(a)(1)(F), N.D.R.Crim.P, expert witness summaries must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications. The State's failure to comply with Rule 16(a)(1)(F) may impede a defendant's ability to prepare the defendant's defense.

Judgment confirming right of entry for pre-condemnation examination and survey was not equivalent to a perpetual easement, because the authorized purposes all had a definite end point. To establish a violation under either takings provision, challengers must demonstrate they have a property interest that is constitutionally protected. Statute permitting pre-condemnation entry for survey and examination illustrates a longstanding background principle of state property law and reflects the original public meaning of state constitution's takings provision. The entry statute limits the entry to the authorized purpose or mission of determining the location and necessary scope of private property taken to serve the greatest public benefit at the lowest cost in terms of private injury.

Judgment confirming right of entry for pre-condemnation examination and survey was not equivalent to a perpetual easement, because the authorized purposes all had a definite end point. To establish a violation under either takings provision, challengers must demonstrate they have a property interest that is constitutionally protected. Statute permitting pre-condemnation entry for survey and examination illustrates a longstanding background principle of state property law and reflects the original public meaning of state constitution's takings provision. The entry statute limits the entry to the authorized purpose or mission of determining the location and necessary scope of private property taken to serve the greatest public benefit at the lowest cost in terms of private injury.

A district court's discussion, impressing upon a witness that she had a duty to tell the truth, is not obvious error under N.D.R.Ev. 603. A comment on the defendant's post-arrest silence is an improper comment on the right to remain silent in violation of the Fifth and Fourteenth Amendments of the United States Constitution. But, the error is harmless if the State proves beyond a reasonable doubt that the comments did not contribute to the verdict and the error was harmless. A non-cognizable offense is created by a logical inconsistency, not a lack of specificity in jury instructions. A party waives an error when the party is given the opportunity to address it and intentionally relinquishes the opportunity. Proof beyond a reasonable doubt of a "sexual act" as defined by statute is not satisfied by inference based on one interpretation of a vague term. The count requires a showing of contact between the victim's vulva, not just the victim's "body," and the defendant's mouth. A conviction based on insufficient evidence implicates constitutional due process and clearly affects substantial rights and the fairness, reputation, and integrity of the court system. An obvious error occurs when a defendant is convicted on insufficient evidence. Under sufficiency of the evidence review, the uncorroborated testimony of a child may be sufficient to sustain a gross sexual imposition conviction. When the defendant is charged with multiple counts of the same offense, the State has the burden to prove the defendant committed each offense. Each element requires proof of a different fact or element to distinguish the act as a separate punishable act. If a defendant is convicted of multiple counts on the same facts, then the second conviction, even if it results in no greater sentence, is an impermissible punishment. An obvious error occurs when a defendant is convicted of the same crime in two counts.

Where the proper remedy is an appeal, the North Dakota Supreme Court generally will not exercise its supervisory authority. A petition to intervene initiates a special proceeding where the relief sought is permission to intervene in an action. District courts have the power to hear and determine all civil actions and proceedings. Post-judgment intervention may be allowed when an attempted intervener moves promptly after learning of the entry of judgment within the time for appeal. Issues not decided by the district court are generally not ripe for resolution on appeal. The purpose of an appeal is to review the actions of the district court. Resolution of issues by the district court before appellate review contributes valuable input to the process and develops the record for effective review of the decision

A claim of adverse possession must meet every element. For the continuous element, a party must hold the property for 20 years. Summaries under N.D.R.Ev. 1006 require that supporting documents be admissible but need not be admitted. A summary usually is inadmissible if the supporting documents are inadmissible. The court must find when conversion began to determine what property, if any, has been converted. When calculating conversion damages, the court must follow N.D.C.C. § 32-0323. The damages must be based on the wronged party's damages and on market values if a market for the converted property exists. The material terms of loans in aggregate greater than $25,000 must be in writing.

A law enforcement officer's approach to a parked vehicle is not a seizure if the officer inquires of the occupant conversationally, does not order the person to do something, and does not demand a response. A defendant's confession was sufficiently corroborated to permit corpus delicti to be shown through confession. When a charge that requires prior conviction is dismissed, submission of prior convictions to a jury constitutes reversible error unless otherwise relevant to some disputed issue and allowed under Rule 404(b), N.D.R.Ev.

An order of contempt of court is summarily affirmed under N.D.R.App.P.35.1(a)(2) and(8).

After a case is transferred to district court, if a criminal information is filed it is by itself sufficient to initiate prosecution, and the district court does not lack jurisdiction if the information is not served on the defendant. A city may prosecute disorderly conduct under its own ordinance when the ordinance does not supersede a state statute. A party may not challenge an error in the jury instruction on appeal when the party waived the issue before the district court. It is not necessary to state in an information the details of the acts which constitute the crime charged when the essential elements of the crime are set forth sufficiently to enable a person of common understanding to know what is meant or intended. One test of the sufficiency of an information is whether it will protect the accused against a subsequent prosecution for the same offense. A defendant in a criminal jury trial must move for a judgment of acquittal to preserve the issue of the sufficiency of the evidence for appeal. This Court may decline to review a forfeited error when the appellant fails to argue the obvious error standard.

When a defendant is charged with gross sexual imposition under N.D.C.C. § 12.1-2003(1)(a) requiring the State prove a defendant touched various parts of the victim's body in a manner constituting a sexual act does not specify a culpability level, the jury is then required to find the actions were willful. Even if the State makes a "golden rule" argument when the issue has not been preserved for appeal, the defendant still must demonstrate the comments had a prejudicial effect to require reversal under obvious error.

The district court's use of "and" instead of "or," as indicated by statute, was an error and a misstatement of the law. Jury instructions that increase the State's burden of proof, requiring them to prove both subsections (a) and (b) of N.D.C.C. § 12.1-03-01(1), is a harmless error as it is not prejudicial to the defendant. A person can be charged with accomplice to extreme indifference murder based on their conduct surrounding an assault under circumstances manifesting extreme indifference, which ultimately results in death, even if the victim's death was unintentional and not contemplated by the accomplice. An accomplice steps into the shoes of a principal for sentencing. If the principal crime charged is contemplated under N.D.C.C. § 12.1-32-09.1, an accomplice to the principal crime can be sentenced under N.D.C.C. § 12.1-32-09.1.

When a law enforcement officer observes a traffic violation the officer may initiate a traffic stop for an investigation. An officer may extend a traffic stop if the officer has reasonable suspicion of criminal activity. Probable cause for a driven vehicle extends to a towed vehicle.

When determining a parent's motion to relocation a child out of state, a district court must first determine if the non-relocating parent consented or if an existing order or decree permits relocation. If neither was met, the court must determine the merits of the relocation by applying the Stout-Hawkinson factors. The district court's findings under the Stout-Hawkinson factors and denying the motion to relocate is summarily affirmed under N.D.R.App.P. 35(a)(2). The district court's findings on the statutory best interest factors and granting the motion to change primary residential responsibility is summarily affirmed under N.D.R.App.P. 35(a)(2).

The Uniform Child Custody Jurisdiction and Enforcement Act, N.D.C.C. ch. 1414.1, governs cases involving interstate custody disputes. Determination of whether North Dakota is a child's home state under the UCCJEA must be analyzed based on when the proceeding in North Dakota was commenced. Jurisdiction may exist under the UCCJEA despite North Dakota not being a child's home state. The purpose of the UCCJEA is to promote cooperation between courts of different states and to prevent manipulation of the judicial system and undue complication of child custody disputes. Parties are required to provide the district court with information regarding other proceedings, and the district court is required to review that information.

Voluntary intoxication is not a defense to a criminal charge. Evidence of intoxication is admissible whenever it is relevant to negate or to establish an element of the offense charged. Attempted "intentional" murder is a criminal offense, requiring the State to prove the accused had an intent to kill to be convicted of attempted murder. A party waives an error when the party is given the opportunity to address it and intentionally relinquishes the opportunity.

Orders for hospitalization and involuntary treatment with medication are summarily affirmed under N.D.R.App.P. 35.1(a)(2).

This evidence was sufficient to support conviction on six counts of aggravated assault. Felonious restraint is not a lesser included offense of forcible gross sexual imposition. Aggravated assault is not a lesser included offense of forcible gross sexual imposition.

The issuance of a temporary operator's permit is a basic and mandatory requirement of the statute. To issue the temporary operator's permit, a law enforcement officer must complete the Report and Notice containing the temporary operator's permit and officially distribute it, but service of the permit is not required.

To satisfy the elements for adverse possession, the acts on which the claimant relies must be actual, visible, continuous, notorious, distinct, and hostile, and of such character to unmistakably indicate an assertion of claim of exclusive ownership by the occupant. When the claim of exclusive right is not founded upon a written instrument, the premises actually occupied and no other must be deemed to have been held adversely. Mowing and maintenance are not unmistakably hostile uses of land and do not support a claim of title by adverse possession. A new encroachment must meet the statutory period to extend the adverse possession to new land. The doctrine of acquiescence applies when parties mutually mistake a boundary as a property line.

A district court's findings on a material change in circumstances, best interest factors (a), (b), (c), and (d), the findings supporting relocation, and the findings related to the new parenting schedule were not clearly erroneous.

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

A petition for postconviction relief seeking to withdraw the petitioner's guilty pleas is reviewed under N.D.R.Crim.P. 11(d), and the district court considers whether relief is necessary to correct a manifest injustice. A petitioner seeking to withdraw his guilty plea alleging ineffective assistance of counsel must surmount the two-prong test set out by Strickland v. Washington, 466 U.S. 668 (1984). To satisfy the first prong under Strickland, a petitioner must show his counsel's representation fell below an objective standard of reasonableness. To satisfy the second prong, a petitioner must establish there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. The applicant must also show the district court that the decision to not plead guilty would have been "rational under the circumstances." Postconviction relief is available under N.D.C.C. § 29-32.1-01(1)(e) when "[e]vidence, not previously presented and heard, exists requiring vacation of the conviction or sentence in the interest of justice." A petition alleging newly discovered evidence following a guilty plea filed within the two-year statute of limitations is reviewed using analysis similar to a motion for new trial under N.D.R.Crim.P. 33(b).

The language "invalid and unenforceable" in N.D.C.C. § 6-09.4-22(2) means an agreement made without the public lending authority as a party is void ab initio.

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

A six-year statute of limitations applies to an unleased mineral interest owner's statutory claim for eighteen percent interest on unpaid royalties. Even if the discovery rule applied, summary judgment is appropriate when the uncontroverted facts establish that a reasonable person would have been placed on notice of a potential claim. For deciding who is entitled to statutory attorney's fees and costs, a prevailing party is the one who successfully prosecutes the action or successfully defends against it, prevailing on the merits of the main issue.

A party resisting a summary judgment motion may not simply rely upon the pleadings or upon unsupported, conclusory allegations. Issues of fact become issues of law when a reasonable person could reach only one conclusion from the facts. The elements of a legal malpractice action against an attorney for professional negligence are: 1) the existence of an attorney-client relationship, 2) a duty by the attorney to the client, 3) a breach of that duty by the attorney, and 4) damages to the client proximately caused by the breach of that duty. The party asserting collateral estoppel bars relitigation of an issue in a new proceeding has the burden of establishing the doctrine applies. A legal malpractice action generally does not litigate the same issues as the underlying civil case in which the malpractice allegedly occurred. Statutes are construed as a whole, harmonized to give meaning to related provisions, and interpreted to give effect to all of their provisions. When a uniform statute is interpreted, we construe it to effectuate its general purpose to make the law uniform in the states which enacted it.

The subsections in N.D.C.C. § 12.1-18-01(1) are alternative means of committing kidnapping and are not separate offenses. When a defendant is charged and sentenced under an incorrect offense level, it is necessary to reverse and remand for resentencing.

A district court order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4). Section 27-20.3-20(1)(c)(2), N.D.C.C., does not require 660 nights to have passed since placement of a child into care to satisfy the statute. The plain language of the statute requires the child be in care for at least 450 nights of the previous 660 nights.

A court may grant a disorderly conduct restraining order when a petitioner establishes, by reasonable grounds, that the respondent engaged in disorderly conduct. Disorderly conduct is defined as intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. Reasonable grounds is synonymous with probable cause. A trespass is not disorderly conduct if there is no intent to adversely affect the safety, security, or privacy of another. A district court may take judicial notice on its own of facts that are generally known within the court's territorial jurisdiction or facts that can be accurately determined from sources which cannot reasonably be questioned. When a district court takes judicial notice before notifying the parties, the parties, on request, are entitled to be heard. 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. The requirement that a party first present an issue to the trial court, as a precondition to raising it on appeal, gives that court a meaningful opportunity to make a correct decision, contributes valuable input to the process, and develops the record for effective review of the decision.

A criminal judgment entered after a jury conviction of sexual assault is reversed because the district court abused its discretion by admitting video of a forensic interview without weighing the probative value against the prejudicial effect. A court is vested with discretion to decide whether a party has opened the door for the admission of otherwise inadmissible evidence, but opening the door for the admission of otherwise inadmissible evidence is not unlimited. A court must first consider whether and to what extent the door has been opened regarding a particular topic. When the door has been opened, the court must also consider, under N.D.R.Ev. 403, whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

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).

Under N.D.C.C. § 14-09.1-07, a family law mediation agreement is not binding upon the parties until approved by order of the court. The district court did not abuse its discretion when it denied the defendant's motion to set aside the judgment.

Orders for hospitalization and involuntary treatment with medication are summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A jury verdict finding a defendant guilty of robbery under N.D.C.C. § 12.1-22-01(2) while simultaneously determining he did not direct the force of a deadly weapon against the victim is legally inconsistent.

A trial court's property valuations and division of the parties' assets and debts, and refinancing of debts are findings of fact subject to the clearly erroneous standard of review. A trial court may weigh spouses' competing testimony on the value of marital property. A trial court's valuation of marital property is not clearly erroneous if the findings are within the range of evidence provided. Whether a trial court includes an indemnity provision in a divorce judgment is dependent upon the facts of the case, subject to the clearly erroneous standard. When determining whether to award spousal support, the trial court must consider the Ruff-Fischer guidelines, the needs of the spouse seeking support, and the ability of the other spouse to pay. Under the child support guidelines, a district court may average an obligor's income when calculating his or her income for child support purposes if the obligor has a fluctuating income. The guidelines specifically provide where gross income is subject to fluctuation, information reflecting and covering a period of time sufficient to reveal the likely extent of fluctuations must be provided.

Under the residual exception to the hearsay rule, a hearsay statement is admissible if the statement is supported by sufficient guarantees of trustworthiness and it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts. The proponent failed to show that a letter containing hearsay statements from the children is more probative than affidavits or declarations from the children, or that the affidavits or declarations could not have been obtained through reasonable efforts. If more than two years have passed since the court entered judgment establishing residential responsibility, 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. The changed circumstances must have adversely affected the child, or there must have been a general decline in the condition of the child. A significant other moving into the home and counseling are material changes in circumstances. The moving party failed to show the changed circumstances adversely affected the children or that there has been a general decline in the condition of the children.

In a trust relationship, a beneficiary has the burden of establishing their fiduciary made unaccounted-for withdrawals or made suspicious transactions that indicate undue influence. If the beneficiary proves this, a court must presume undue influence occurred for any benefit gained by the fiduciary. To avoid liability to the beneficiary for the transactions, the fiduciary must rebut the presumption to show no undue influence occurred.

Hunting without a license and violating a governor's proclamation are crimes in North Dakota that the State has authority to prosecute and the district courts have jurisdiction to redress. The sovereign citizen defense, under which adherents claim they can deny the courts' jurisdiction, is without merit.

A petitioner for postconviction relief must show how his counsel was ineffective through law, rules, or evidence, and cannot rely solely on conclusionary statements.

A criminal judgment for gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

This Court employs a trustworthiness approach when analyzing whether a confession is sufficiently corroborated. Under this approach, not every statement made in a confession must be independently verified; instead, we look to a statement made in its entirety and the facts and circumstances in which it was made to determine if it is reliable and trustworthy. A person of reasonable caution could conclude the statement "we did have sex" means sexual intercourse meeting the statutory definition of a sexual act under N.D.C.C. § 12.1-20-02(4).

A district court's order is affirmed in part and remanded for 30 days while retaining jurisdiction under N.D.R.App.P. 35(a)(3) for no further proceedings other than to provide the additional findings requested by the Court.

Only those judgments and decrees which constitute a final determination of the parties' rights to an action and those orders enumerated in N.D.C.C. § 28-27-02 are appealable. Rule 60(b), N.D.R.Civ.P., applies to final judgments or orders. A final judgment is a decree, order, or judgment "from which an appeal lies." N.D.R.Civ.P. 54(a). Rule 54(b), N.D.R.Civ.P., recognizes a district court may direct entry of a final judgment against only some of the parties to a litigation, but until final judgment is entered all orders are subject to revision.

In summary judgment proceedings, the non-moving party cannot rely on pleadings or unsupported conclusionary allegations. The non-moving party must present admissible evidence that raises an issue of material fact. If the non-moving party does not meet their burden, the district court may grant summary judgment

A petitioner for a writ of mandamus must show a clear legal right to performance of the act sought to be compelled and must establish no plain, speedy, and adequate remedy exists in the ordinary course of law. When a deed does not use an existing tract currently recorded, and Instead, the deed attempts to convey a portion of land not previously recorded in the tract index as a tract or parcel of land. The description in the deed changes the property description. Under N.D.C.C. § 57-02-39, the Auditor has discretion to request a replat of the land if certain conditions are met. Property ownership is an issue for a court to decide in an appropriate proceeding involving the individuals who claim ownership to the property.

When a defendant fails to object to a proposed instruction properly or fails to specifically request an instruction or object to the omission of an instruction, the issue is not adequately preserved for appellate review and the inquiry is limited to whether the jury instructions constitute obvious error affecting substantial rights. To successfully challenge the sufficiency of the evidence on appeal, the defendant must show the evidence, when viewed in the light most favorable to the verdict, permits no reasonable inference of guilt. Improper comment about a defendant's invocation of the right to remain silent is a constitutional error that may be reviewed on appeal even though not raised at trial. When a defendant fails to object to alleged misconduct, we will not reverse unless the misconduct constitutes obvious error

A lease must be read and considered in its entirety so that all of its provisions are taken into consideration to determine the parties' true intent. Under a usual oil and gas lease, the lessee, in developing the leased premises, is entitled to use of the land reasonably necessary in producing the oil. A purchaser who fails to make the requisite inquiry cannot claim the protection of a goodfaith purchaser status.

To satisfy the elements for adverse possession, the acts on which the claimant relies must be actual, visible, continuous, notorious, distinct, and hostile, and of such character to unmistakably indicate an assertion of claim of exclusive ownership by the occupant. Section 28-01-11, N.D.C.C., narrows the scope of adverse possession when it is not based on a written instrument to property protected by a substantial enclosure or when it has been usually cultivated or improved. Possession of real property which is permissive at its inception only becomes adverse when there is a disclaimer of the true owner's title or there are acts of an unequivocal nature by the possessor putting the owner on notice of the hostile nature of the possession. A claimant's mowing and maintenance are not unmistakable hostile uses of land to support a claim of adverse possession. To establish a new boundary line by the doctrine of acquiescence, it must be shown by clear and convincing evidence that both parties recognized the line as a boundary for at least 20 years.

The doctrine of latches does not apply to child support arrearages. Even if the division of juvenile services has temporary custody of a minor, the child support obligor still owes child support. The State and obligee have standing to assert a claim for child support arrearages for a child who has reached the age of majority. The Federal Consumer Credit Protection Act does not apply to child support.

Retention of and access to court records is a matter of public interest warranting the exercise of this Court's original jurisdiction. The judge of a municipal court or a clerk designated by the judge shall be responsible for the administration of all municipal court records in accordance with the records retention schedule. The retention schedule requires the court to retain permanently a summary of the case or register of actions. A permanent record must be retained indefinitely.

A district court judgment dismissing a claim of defamation and awarding attorney's fees is affirmed. A defamation action must be commenced within two years after the claim for relief has accrued. A cause of action accrues on a defamation claim when the publication of the false statement is made to a third party. The period of limitation for commencement of a defamation action is tolled during the 45-day period allowed in N.D.C.C. § 32-43-06 for responding to a request for correction or clarification. The statutory reference to 90 days in N.D.C.C. § 32-43-03(2) does not provide an additional 90-day tolling period in addition to the 45-day period in N.D.C.C. § 32-43-06. The district court has discretion under N.D.C.C. § 28-26-01(2) to determine whether a claim is frivolous and how much to award in attorney's fees. The court is considered an expert in determining the amount of attorney's fees. A court is not required to describe its calculations in detail when making its findings regarding attorney's fees as long as this Court is able to discern a basis for the award.

Possession may be actual or constructive, exclusive or joint and may be shown entirely by circumstantial evidence. Under N.D.C.C. § 12.1-01-04(9), a firearm means any weapon that will expel, or is readily capable of expelling, a projectile by the action of an explosive.

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

A denial of summary judgment puts the parties to their proof with a full opportunity to present all of their evidence. If a case goes to trial after a motion for summary judgment is denied, the question of whether the trial court erred in denying summary judgment is moot. A partnership is an association of two or more persons to carry on as co-owners a business for profit. Whether a partnership exists depends on the facts and circumstances of each case. The critical elements of a partnership are (1) an intention to be partners, (2) coownership of the business, and (3) a profit motive. The determination whether property held in the name of an individual partner belongs to the partnership is a question of fact. The relevant inquiry is whether the partners intended that the property in question be partnership property or individual property. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. When a statement within a statement is at issue, each must be admissible on its own.

Restitution must be limited to reasonable damages "directly related" to a criminal offense or expenses sustained as a "direct result" of the defendant's criminal action. There must be an immediate and intimate causal connection between the criminal conduct and the damages or expenses for which restitution is ordered. Extradition costs indirectly related to criminal conduct may not be imposed as restitution. A district court is generally bound by the terms of a plea agreement it has accepted. After accepting a plea agreement and entering judgment, the court may not add an additional punishment.

A contract requires an offer, an acceptance of an offer, and a mutual acceptance and understanding between the offeror and the offeree as to the terms of the obligation. When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings. Actual notice of a prior competing interest defeats a good-faith purchaser claim. To succeed on a claim for intentional interference with contract, a plaintiff must prove (1) a contract existed, (2) the contract was breached, (3) the defendant instigated the breach, and (4) the defendant instigated the breach without justification. The test for proving justification is what is reasonable conduct under all the circumstances of the case. Even where the evidence shows a defendant interfered with a contract, the defendant's actions are justified if they are done for legitimate business concerns and did not maliciously seek to damage the plaintiff.

A jury's special verdict will be reversed only if it is perverse and clearly contrary to the evidence. The presumption on appeal is that jurors do not intend to return conflicting answers. Reconciliation of a verdict includes an examination of both the law of the case and the evidence to determine whether the verdict is logical and probable and thus consistent, or whether it is perverse and clearly contrary to the evidence. Rule 408, N.D.R.Ev., encourages candor during settlement discussions by expanding the common-law rule and rendering inadmissible evidence of conduct or a statement made during compromise negotiations.

To establish prosecutorial misconduct, an applicant for postconviction relief must show (1) the prosecutor's actions constitute misconduct, and (2) the misconduct had a prejudicial effect. North Dakota Rule of Evidence 404(b) requires exclusion of evidence of other acts and crimes committed by the defendant when they are independent of the charged crime and do not fit into the rule's exceptions. Rule 404(b) requires prosecutors to give written notice and explanation if they intend to offer prior bad act evidence. Knowing introduction of prior bad act evidence coupled with a failure to comply with the Rule 404(b) notice requirement constitutes prosecutorial misconduct. Admission of evidence of prior sexual misconduct during a criminal prosecution for a sex-related crime creates unique potential for prejudice.

The elements of a legal malpractice action against an attorney for professional negligence are: 1) the existence of an attorney-client relationship, 2) a duty by the attorney to the client, 3) a breach of that duty by the attorney, and 4) damages to the client proximately caused by the breach of that duty. When it is alleged that an attorney negligently failed to perform some act on behalf of the client, the plaintiff must allege and prove performance of the act would have benefitted the client. In a legal malpractice action, the plaintiff has the burden to show damages proximately caused by the breach of the duty owed to the plaintiff. The amount of the damages does not require proof to a degree of mathematical precision however, the jury must have some factual basis for fixing damages.

The statutes granting cities the power to make special assessments must be strictly construed, and the conditions imposed must be specifically observed and performed. Section 40-23-07, N.D.C.C., requires a determination of special benefits to each lot. This determination of special benefits must be independent of and without consideration of the improvement project cost in order to satisfy the statutory requirement that the assessment against each lot is "not exceeding the benefits." We have approved the use of formulas by special assessment commissions to determine the "just proportion" of assessment to each lot and as a factor in determining the amount of benefit received by each lot. We overrule Holter v. City of Mandan, 2020 ND 152, 946 N.W.2d 524, because it misinterpreted N.D.C.C. § 40-23-07 to the extent it held the statute permitted use of the same formula to determine both the benefit received by a lot and the assessment of costs to that lot.

A criminal judgment entered after a jury found the defendant guilty of aggravated assault is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A district court order requiring continued hospitalization is summarily affirmed under N.D.R.App.P 35.1(a)(2).

Due process prohibits the criminal prosecution of a defendant who is not competent to stand trial. A defendant is incompetent when he lacks (1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or (2) a rational as well as factual understanding of the proceedings against him. The prosecution must show by a preponderance of evidence that a defendant is competent to stand trial. The fifteen day deadline for a mental health examination under N.D.C.C. § 12.1-04-07 does not begin until receipt of material necessary to examine the fitness of the individual and notice of entry of the order served upon the tier 1a mental health professional. When factual issues are involved in deciding a pretrial motion in a criminal case, the district court must state its essential findings on the record. A decision cannot be properly reviewed if the district court fails to make adequate findings explaining the basis for its ultimate conclusion.

Lawyer interim suspended.

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

A district court order dismissing a petition for formal probate for failure to prosecute under N.D.R.Civ.P. 40(e) is reversed because the record does not show a lack of prosecution for more than a year.

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

"Willful" conduct is not incongruent with "intentional" conduct. "Willful" conduct includes "intentional" conduct, meaning a person's conduct can be both willful and intentional. Habitual offender proceedings are sentencing proceedings. Therefore, the rules of evidence do not apply to the court's determination of whether an offender is a habitual offender.

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

Pre-unitization costs of drilling and operating a well, which is now attributed to the unit, reasonably fall within the definition of unit expense. Under unitization, the risk penalty may be recovered out of, and only out of, production from the unit. A physical taking is where the government requires an owner to suffer a permanent physical invasion of her property. Total regulatory takings occur when regulations completely deprive an owner of all economically beneficial use of her property. Property is subject to the police power of the state to impose such restrictions upon private rights as are practically necessary for the general welfare of all. The Court accords greater deference to Industrial Commission findings of fact than it ordinarily accords to other administrative agencies' findings of fact. In orders approving a plan of unitization, the Commission made the required findings, and those findings are supported by substantial and credible evidence.

The Uniform Postconviction Procedure Act, N.D.C.C. ch. 29-32.1, does not apply to juvenile adjudications.

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

Judgments entered after a jury found the defendant guilty of tampering with evidence and murder are summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

A prosecutor's question to a law enforcement officer whether, at any point during the officer's investigation, the officer interviewed the defendant did not violate the defendant's Fifth Amendment rights. A court considering a motion for new trial based on alleged jury misconduct is prohibited from hearing testimony from or receiving declarations of jurors, subject to the exceptions under N.D.R.Ev. 606(b).

An appeal from a district court judgment is dismissed because the appeal was untimely. The time to appeal the judgment was not tolled under N.D.R.App.P. 4(a)(3)(A)(vi) because a Rule 60, N.D.R.Civ.P., motion was not filed and served within 28 days from notice of entry of judgment.

Unless a statute imposing a time limit declares the time limit is jurisdictional, we will not treat the time limit as affecting the jurisdiction of a court or administrative agency. An issue is not justiciable if it is moot or not ripe for review, a party lacks standing, or resolving it would be advisory. When petitioning for termination of a guardianship, the ward has the burden of establishing a prima facie case that he is no longer incapacitated. If the ward presents evidence strong enough, if uncontradicted, to support a finding in his favor, he has made a prima facie case. The review process under N.D.C.C. § 30.1-28-04(5) does not provide the court statutory authority to reappoint an expert examiner. At the time of petitioning for termination in this case, N.D.C.C. § 30.1-28-07(3) (2022) did not give the court statutory authority to reappoint an expert examiner in the termination proceedings, or request an evaluative report and testimony. After the ward establishes a prima facie case, the guardian has the burden of proving by clear and convincing evidence that the ward remains an incapacitated person.

An endorsement is part of the insurance contract. The body of an insurance policy and the endorsements are read as a whole with every attempt to give effect to all of the provisions. When there is a conflict between an endorsement and other policy provisions, the endorsement prevails.

Lawyer disbarment ordered.

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

An order denying a motion to vacate judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), (7), and (8).

An appeal is moot when a determination is sought which, when rendered, cannot have any practical legal effect upon a then-existing controversy. An appeal is not moot if the district court's decision continues to have collateral consequences for the appealing party. If an individual is already subject to firearms restrictions, the court's finding that federal firearms restrictions apply is not a lasting collateral consequence of the order being challenged on appeal.

A domestic violence protection order is affirmed. A district court's finding of domestic violence is a finding of fact that will not be overturned unless it is clearly erroneous. This Court gives great deference to a factfinder's opportunity to observe the witnesses and determine credibility. We will not reverse simply because we may have viewed the evidence differently.

An amended divorce judgment is affirmed. Adverse rulings alone are not evidence of judicial bias or partiality. A district court misapplies N.D. Admin. Code § 75-02-04.1-05 when it fails to make a finding on whether two self-employment activities are related. The plain language of N.D. Admin. Code § 75-02-04.1-05(6) and (7) does not preclude using a loss to reduce income that is related to the self-employment activity that produced the loss. On the other hand, if two self-employment activities are unrelated, then under N.D. Admin. Code § 75-02-04.1-05(6), a loss resulting from the unrelated self-employment activity could be applied to reduce income from the other self-employment activity only if the monthly gross income, reduced by one-twelfth of the self-employment loss, equals or exceeds the greatest of subsections (a), (b) or (c). If the district court erred in its application of the child support guidelines, then we must examine whether the error was harmless. An error is harmless if it does not affect the outcome of the case or a party's substantial rights. See N.D.R.Civ.P. 61.

A criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Rule 25 of the North Dakota Rules of Civil Procedure governs substitution when a party dies during district court proceedings. Rule 25 provides a number of requirements that must occur before substitution of a party can be ordered and a case continued. A conservator's authority terminates when the protected person dies.

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

School psychologists not "employed primarily as a classroom teacher" are not "teachers" as defined in N.D.C.C. § 15.1-16-01(5). Hilton v. North Dakota Edu. Ass'n, 2002 ND 209, 655 N.W.2d 60, is overruled to the extent it holds a licensed school district employee who is not an administrator is a teacher irrespective of the employee's assigned teaching duties. A special education teacher is not a "teacher" within N.D.C.C. ch. 15.1-16 when the teacher is not a school employee. This Court does not hold whether a school district may provide teaching services through independent contractors.

A district court's grant of summary judgment for defendant is affirmed. A plaintiff may not challenge the court's jurisdiction over a defendant who admitted personal jurisdiction on the basis of defects in the plaintiff's service of process on the defendant. Generally, a plaintiff may not obtain a default judgment after being served with defendant's answer. Under Lindke v. Freed, 601 U.S. 187 (2024), a state official's social-media activity constitutes state action under 42 U.S.C. § 1983 only if the official (1) possessed actual authority to speak on the state's behalf, and (2) purported to exercise that authority when he spoke on social media. A district court has discretion under N.D.C.C. § 28-26-01(2) to determine whether a claim is frivolous and how much to award, but the district court must award costs and attorney's fees if it finds the claim is frivolous.

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

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

An amended criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (7), and (8).

A district court must have sufficient evidence to support a finding of great prejudice prior to ordering a partition by sale. The party seeking partition by sale must prove great prejudice with authenticated evidence that a physical partition would result in serious pecuniary injury.

Attorney Interim Suspended

A person must have a reasonable claim to an interest or estate in real property to maintain a quiet title action. A person without an interest or estate in real property cannot simultaneously voluntarily join a quiet title action and seek attorney's fees by claiming the action is frivolous. An award of attorney's fees is reviewed under the abuse of discretion standard.

A district court does not have continuing jurisdiction over a final property distribution. Nevertheless, a final property division in a divorce may be modified in the same manner and on the same grounds as other judgments including a motion pursuant to N.D.R.Civ.P. 60. Extraordinary circumstances are required for N.D.R.Civ.P. 60(b)(6) to be invoked. If the judgment sought to be set aside was entered based on a stipulation of the parties, the party challenging the judgment has the additional burden of showing under the law of contracts there is justification for setting aside the stipulation. On appeal, only considered is a determination of whether the district court abused its discretion in ruling that sufficient grounds for disturbing the finality of a judgment were not established, not whether the court was substantively correct in entering the judgment from which relief was sought.

When the record on direct appeal is inadequate to determine whether the defendant received ineffective assistance of counsel, the defendant may pursue the ineffectiveness claim at a postconviction proceeding where an adequate record can be made. A criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Under N.D.R.Ev. 404(b), district courts are to apply a three-step analysis to determine whether the evidence of other crimes, wrongs, or acts is admissible: 1) the court must look to the purpose for which the evidence is introduced; 2) the evidence of the prior act or acts must be substantially reliable or clear and convincing; and 3) in criminal cases, there must be proof of the crime charged which permits the trier of fact to establish the defendant's guilt or innocence independently on the evidence presented, without consideration of the evidence of the prior acts. Under N.D.R.Crim.P. 52, any error, defect, irregularity or variance that does not affect substantial rights must be disregarded. When reviewing a nonconstitutional trial error, the objective is to determine whether the error was so prejudicial that substantial injury occurred and a different decision would have resulted without the error. Under N.D.R.Ev. 103(a)(1)(B), an objection to the introduction of evidence must state the specific ground of the objection unless it was apparent from the context. Only issues that have been thoroughly briefed and argued are considered on appeal. The standard of review for reconciling a jury verdict is whether the verdict is legally inconsistent. Strict standards of logical consistency need not be applied to jury verdicts in criminal cases. Reconciliation of a verdict includes an examination of both the law and the case in order to determine whether the verdict is logical and probable, and therefore consistent, or illogical and clearly contrary to the evidence. Even if a jury fails to convict a defendant on a charge having a similar element to a charge on which the defendant is convicted, there is no legal inconsistency if there is substantial evidence to support the charge on which he is convicted. 1Jury instructions agreed to by a defendant become the law of the case.

A court's review is very limited in an appeal from a local governing body's decision. The supreme court's function is to independently determine the propriety of the local governing body's decision, without any special deference to the district court's decision. The decision of a local governing body must be affirmed unless the local body acted arbitrarily, capriciously or unreasonably, or if there is not substantial evidence supporting the decision. Chapters 40-39 and 40-50.1, N.D.C.C., are intended to accomplish different tasks, and each provides its own method to protect public rights in streets, alleys, and public grounds. Section 40-39-05, N.D.C.C., applies when a petition seeks only to vacate "public grounds, streets, alleys, or parts thereof." Section 40-50.1-16, N.D.C.C., applies when all owners of lots in a plat seek to vacate the plat or part of the plat containing "public rights in the streets, alleys, easements, and public grounds."

A district court judgment denying postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

A district court order denying an amended application for postconviction relief is affirmed. The affirmative defenses of res judicata and the statute of limitations are waived by the State when not raised in its answer to an application for postconviction relief. To trigger the presumption of prejudice arising from improper jury contact, an applicant must first establish that the improper contact actually occurred.

Ordinarily in cases involving consent to enter a home, entry is preceded by an exchange between a police officer and an occupant in which the officer makes an inquiry and in response the occupant verbally or physically reacts in a manner that may be interpreted as consent. Absent verbal consent, the State must show affirmative conduct by the person alleged to have consented that is consistent with the giving of consent, rather than merely showing that the person took no affirmative actions to stop the police. The existence of consent is a question of fact to be determined from the totality of the circumstances. The scope of an individual's consent is determined by considering what an objectively reasonable person would have understood the consent to include. Whether consent was voluntarily given considers examination of the totality of the circumstances at the time it was given. Factors that may be considered in determining the totality of the circumstances are the characteristics and condition of the accused at the time of consent and the details of the setting in which consent was obtained, though no one factor is determinative.

Section 12.1-31.2-02, N.D.C.C., permits an individual to be charged for violating a pre-dispositional order when the alleged violation occurs while the individual is in custody. A pre-dispositional order issued under N.D.C.C. § 12.1-31.2-02(1) differs from a condition of release issued under N.D.R.Crim.P. 46(a)(2)(E). An argument not adequately articulated, supported, and briefed will not be considered by this Court.

An order dismissing the matter without prejudice following a finding of prosecutorial misconduct is affirmed. Although the district court has some supervisory control over dismissals, the court should not dismiss a case with prejudice unless the court has had an opportunity to determine issues of bad faith, harassment, or misconduct, and this finding must be supported by clear and convincing evidence. Generally, dismissal with prejudice is a remedy that should only be used in extreme circumstances.

An order dismissing an appeal from a local governing body's decision is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Under N.D.R.App.P. 28 a party is required to include legal authorities on which the party relies. During oral argument a party may not raise new claims or rely on legal authorities not contained in their brief. A district court's substantial compliance with N.D.R.Crim.P. 11 is determined on the record as a whole. An ineffective assistance of counsel claim generally should be brought in a postconviction relief proceeding.

Workforce Safety and Insurance did not abuse its discretion by denying a request for approval of daily opioid medication in excess of 90 Morphine Milligram Equivalents. The district court judgment affirming WSI's managed care binding dispute resolution decision is affirmed.

A party had access to an attorney under N.D.C.C. § 14-03.2-08 when the party was made aware of the need for a premarital agreement long before the wedding. A party received adequate financial disclosure under N.D.C.C. § 14-03.208 when the party observed the other party's day-to-day involvement connected to the other party's assets and had the opportunity to review balance sheets. A party's consent is voluntary and not the result of duress when the party has the knowledge and experience to understand the contents of a premarital agreement and had been aware of the need for an agreement. A party arguing a premarital agreement is substantively unconscionable must argue a term of the agreement is substantively unconscionable. This Court reviews a district court's decision to allow an undisclosed witness to testify under an abuse of discretion standard. Although the sequestration rule applies to rebuttal witnesses, a district court has discretion to allow a rebuttal witness to testify when the testimony is not negatively influenced by or inappropriately tailored to prior testimony.

To succeed on a claim of ineffective assistance of counsel, the petitioner must first prove his counsel's performance was defective. Second, the petitioner must show his defense was prejudiced by the proven defects. Both must be established in order to prevail under a claim of ineffective assistance of counsel. Thus, if there is an insufficient showing on one, the reviewing court need not address the other.

Investigative stops of a vehicle and its occupants for suspected violations of law will be upheld if officers have at least a reasonable suspicion that the motorist has violated the law or probable cause to believe the motorist has done so. The suspected violation of law need not be related to the current operation of a motor vehicle. Reasonable suspicion for a stop exists when a reasonable person in the officer's position would be justified by some objective manifestation to suspect potential unlawful activity. The reasonable suspicion standard is objective and does not hinge upon the subjective beliefs or motivations of the arresting officer. In order to determine whether an investigative stop is valid, we consider the totality of the circumstances and examine the information known to the officer at the time of the stop. An officer is required to administer the Miranda warning when a person is subject to custodial interrogation. A suspect is in custody when there is a formal arrest or restraint on the suspect's freedom of movement to the degree associated with a formal arrest. When determining if a person is subject to custodial interrogation, the court examines all circumstances surrounding the interrogation and considers what a reasonable man in the suspect's position would have understood in his situation.

Under N.D.C.C. § 27-20.1-16(2), any party to the proceeding in which the child's status was adjudicated may petition for removal or modification of a guardian on the grounds the removal or modification would be in the best interest of the child. If an insufficient showing has been made, the district court shall issue an order denying the petition.

While we have previously treated motions filed under the rules of criminal procedure as applications under the Uniform Postconviction Procedure Act, we have done so in the limited circumstance where the defendant has filed a previous application for postconviction relief and the filing in the criminal case hints at an attempt to "avoid the procedures of the Uniform Postconviction Procedure Act." It is not proper for a defendant to collaterally attack the underlying conviction by way of a motion to correct an illegal sentence because the "Uniform Postconviction Procedure Act is the exclusive remedy for collaterally challenging a judgment of conviction or sentence . . . ."

A judge acting within their judicial capacity is protected by judicial immunity. The prevailing party of a frivolous action shall be awarded attorney's fees.

The party presentation principle requires courts refrain from deciding constitutional questions not submitted by the litigants.

A district court order terminating parental rights and granting a petition for adoption is summarily affirmed under N.D.R.App. 35.1(a)(2) and (4).

A postconviction relief application barred by the two-year limitation in N.D.C.C. § 29-32.1-01(2) is not excepted by N.D.C.C. § 29-32.1-01(3) when the applicant demonstrates a physical disability or mental disease does not preclude timely assertion of their application for relief. Although Rule 615, N.D.R.Ev., uses the plural term "witnesses," the plural term "witnesses" is interpreted to include the singular term "witness." Therefore, a party may request to sequester a single witness.

A home rule city's power to enact ordinances that supersede state law is not without limitation because a home rule city's powers must be based upon statutory provisions. Cities are creatures of statute and possess only those powers and authorities granted by statute or necessarily implied from an express statutory grant.