Volume 963 — North Western Reporter, Second Series

Whether a law is unconstitutional is a question of law, which is fully reviewable on appeal. Municipal harassment ordinance is not unconstitutionally vague on its face or as applied to defendant.

An order denying a motion to vacate an order reforming a trust is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (4), and (7).

Arguments not raised before the district court cannot be raised for the first time on appeal. Under the Servicemembers Civil Relief Act, a servicemember may apply for a stay of the action if the requirements of military duty affects the servicemember's ability to appear.

Before dismissing an action for failure to prosecute under N.D.R.Civ.P. 41(b), a district court must consider several competing factors including a court's need to manage its docket, the public interest in expeditious resolution of litigation, and the risk of prejudice to adverse parties from delay. The court must balance these factors against the great reluctance to impose the harsh remedy of dismissal based upon our policy favoring disposition of cases on their merits. A district court's decision to dismiss a claim for failure to prosecute will not be overturned absent an abuse of discretion. While North Dakota law does not formally recognize motions to reconsider, motions for reconsideration may be treated as motions to alter or amend a judgment under N.D.R.Civ.P. 59(j), or motions for relief from a judgment under N.D.R.Civ.P. 60(b).

Issues related to subject matter jurisdiction can be raised at any time and cannot be waived. As a general rule, it is presumed that North Dakota district courts have subject matter jurisdiction, and the party challenging the district court's subject matter jurisdiction bears the burden of proving the district court lacks subject matter jurisdiction.

General rules of interpretation of written instruments apply to the construction of trust documents. When a trust agreement is unambiguous, the settlor's intent is ascertained from the language of the agreement itself. Under N.D.C.C. § 47-05-17, the right of access to land to hunt game animals or game birds may not be severed from the surface estate.

Where you have a closely held company, the law imposes a fiduciary duty upon the governors and majority shareholders to act in good faith, and affords remedies to minority shareholders if those in control act fraudulently, illegally, or in a manner unfairly prejudicial toward any shareholder. The date a person acquires interest in a company is a question of fact reviewed under the clearly erroneous standard.

A mistake of fact may support reasonable suspicion for a traffic stop if the mistake was objectively reasonable. When reviewing a district court's decision on a motion to suppress, we defer to the court's findings of fact and resolve conflicts in testimony in favor of affirmance.