N.D. Supreme Court hears appeal in family land partition dispute over access, valuation and clerical change

BISMARCK, N.D. — At oral argument before the North Dakota Supreme Court, attorneys for Brian Tishmek and for the Tishmack Family Irrevocable Trust disputed whether a district court properly modified a referee's partition recommendation and whether that modification was a clerical correction or a substantive change affecting property value and access. The justices took the case under advisement.

Why it matters: The property division at issue involves multiple sections of rural land (referred to in the record as parts of Section 33 and the northwest of Section 34), an active gravel lease described as the Knife River agreement, and contested accounting of trust receipts. If the district court's amended description stands as the court issued it, the appellant's counsel said the change would require the appellant to pay roughly $471,862.79 to the trust.

At argument, Lisa Hedick, an attorney with Crowley Fleck representing appellant Brian Tishmek, told the court the district judge abused his discretion by accepting recommendation 5 from the referee without explaining how the findings supported that division and without resolving identified gaps in the referee's report. Hedick said the court failed to analyze statutorily required factors in North Dakota Century Code chapter 32-16'including location and character of the property, sentimental attachment, owners' situations, parties' financial ability, and preservation of the home'and that the referee's report explicitly left out considerations such as fencing, certain value adjustments, and the effect of the Knife River agreement.

Hedick argued the district court's later use of a Rule 60(a) motion to change the order was improper because the amendment was substantive: "the difference between writing all of section 33 versus the south half of 33'that's a substantive change," she told the court. She also pressed that the accounting the district court adopted was inconsistent with the documentary record and called for a recalculation of monies due to her client; she identified a trust-accounting shortfall in the record and cited a figure in the appellant's brief for monies owed of $10,737.21.

Dan Nagel, counsel for the Tishmack Family Irrevocable Trust, told the justices the district court judge treated one of the five referee recommendations as a clerical mistake and corrected it under Rule 60(a). Nagel said Judge Romanek expressly stated on the record that the change in acreage and the description of Section 33 were typographical and that the court's substantive analysis adhered to one referee recommendation the judge intended to adopt. Quoting the district judge as recorded in the transcript, Nagel told the justices: "I freely admit if I fat fingered a number and typed a 2 instead of a 3."

Nagel also told the court that the referee complied with state law by providing five partition options, that the parties and the referee accepted the referee process, and that the trial judge properly exercised broad equitable discretion in partition cases. He said the accounting dispute was a relatively small part of the overall dispute and that the trial record supported awarding the appellant at least a one-fifth share of trust funds then identified in the order.

Facts in dispute: Counsel debated several operational facts that shaped the court's findings. Hedick emphasized evidence she says shows limited access to some parcels, rough terrain that would make agricultural use difficult without contiguous acreage and vehicle access, and the referee's admission it did not consider fencing costs or certain lease burdens. Nagel countered that family members who manage and maintain the land testified the section lines and access paths are traversable and that long-term tenants continue to rent the cropland.

Legal framework and relief sought: Both counsel cited North Dakota Century Code chapter 32-16 and the district court's duties to review, modify or set aside a referee's report under the statute. Hedick asked the Supreme Court to reverse the district court's Rule 60(a) amendment and to either award appellant all of Section 33 and the northwest of Section 34 or remand for findings consistent with the enumerated statutory factors and a corrected accounting. Nagel asked the court to affirm the district court's orders.

What the court did: The justices did not rule at argument. Chief Justice Jensen and the other justices present took the case under advisement and announced the court would issue a written decision later. The transcript shows the court adjourned after taking the case under advisement.

Context: The dispute centers on a long-farmed family property deeded into an irrevocable trust in 2017 and on a referee's partition recommendations submitted to the district court. The disagreement tracks two types of questions: whether the district court's post-judgment description change was clerical and permissible under Rule 60(a), and whether the district court adequately applied the statutory and case-law factors required in equitable partition decisions. The case also raises practical questions about access, continued agricultural use, and how leases such as the Knife River agreement should affect value and division of land.

The court will issue a written opinion later that will resolve whether the district court's amendment and its application of the referee's report must be set aside or affirmed.