Justia Civil Procedure Opinion SummariesArticles Posted in North Dakota Supreme Court
Hughes v. Olheiser Masonry, et al.
John Hughes appeals from a district court order dismissing his negligence action. In 2012, Olheiser Masonry employee Harley Rapp, and Hughes collided in a forklift and motor vehicle accident. Rapp was driving a forklift and Hughes was driving a pickup truck. Hughes filed a complaint with the district court on May 22, 2018, alleging injuries as a result of the negligence of Rapp, Curt Olheiser, and Olheiser Masonry. Hughes mailed his complaint and summons to the Stark County Sheriff’s Department the same day, requesting the documents be served on the defendants. The Stark County sheriff’s department did not receive the documents until May 31, 2018. Olheiser, Olheiser Masonry, and Rapp were served by the sheriff’s department on June 1 and 2, 2018. On October 11, 2018, Olheiser, Olheiser Masonry, and Rapp filed a motion to dismiss arguing the action was not commenced until after the statute of limitations expired. The district court granted the motion to dismiss and concluded the action was not commenced until after the statute of limitations expired because the Stark County sheriff’s department did not receive the summons until May 31, 2018. Hughes appealed, arguing mailing of a summons and complaint to the sheriff’s department should have been treated as delivery for purposes of commencing his civil action. Finding no reversible error, the North Dakota Supreme Court affirmed the district court’s order. View "Hughes v. Olheiser Masonry, et al." on Justia Law
Broten v. Carter, et al.
James Broten appealed the dismissal of his attorney malpractice claim. Broten was appointed to serve as the personal representative of his father’s estate. Broten was sued by his sisters who claimed Broten had breached his fiduciary duties as personal representative by transferring land held in the trust to himself. In 2011, Broten retained attorney Ralph Carter to defend him against his sisters’ claims. During Carter’s representation, Broten showed Carter approximately sixty boxes of records Broten believed documented payments to his parents and provided a defense to his sisters’ claims. Broten repeatedly inquired with Carter about his review of the records. The records were not disclosed to the opposing party during discovery but disclosed after Carter was replaced as Broten’s counsel in March of 2013. In August 2013, the district court entered an order finding Broten had breached his fiduciary duties as personal representative of his father’s estate, ultimately requiring Broten to pay damages to his sisters in an amount of $1,300,054. Broten alleged Carter’s failure to review and disclose the documents prevented all of the records from being introduced as evidence and resulted in the liability to his sisters. Carter moved for summary judgment, arguing the applicable two year statute of limitations barred Broten’s claim. The district court granted summary judgment in favor of Carter and awarded to Carter the recovery of costs and fees, including the costs expended for expert witnesses who were unnecessary for resolution of the statute of limitations issue. Broten argued the district court erred in granting summary judgment after finding his claim was barred by the applicable statute of limitations. He also challenged the inclusion of expert witness fees within the expenses awarded by the district court for experts who were unnecessary for resolution of the statute of limitations issue. Finding no reversible error, the North Dakota Supreme Court affirmed. View "Broten v. Carter, et al." on Justia Law
Posted in: Civil Procedure, Legal Ethics, North Dakota Supreme Court, Professional Malpractice & Ethics
Fettig v. Fettig, et al.
Anton Jacob Fettig appealed two district court judgments quieting title to real property in McKenzie County, North Dakota. Anton owned three parcels of real property. In 2001, Anton L. Fetting (Anton) executed a warranty deed conveying sections 5, 17, and 22 to his two minor children, A.J.F. and S.F.F. Anton recorded the deed the same day. At the time of the conveyance, A.J.F. and S.F.F. were approximately three and five years of age. In 2004, Anton received an email from an attorney with the United States Department of Agriculture, stating that the Department considered the 2001 deed void, and that Anton still owned the land. As a result of this email, and in an attempt to clear title to the land, Anton executed a warranty deed in 2004, conveying the land back to himself. The deed named Anton as both the grantor and grantee. The deed was recorded the same day. The next year, Anton executed quitclaim deeds conveying parcels 5, 17 and 22 to his sons Charles, Howard and Morgen, respectively. These deeds were recorded in 2006. In January 2016, Charles Fettig filed suit seeking to quiet title to section 5. Because the district court ruled for Charles, Howard and Morgen filed separate suits seeking to quiet title to the sections previously conveyed to them. The district court concluded that the 2001 deed conveying the land to A.J.F. and S.F.F. was void under N.D.C.C. sections 9-02-02 and 14-10-10, that Howard was the true and correct owner of section 17, and that Morgen was the true and correct owner of section 22. A.J.F. timely appealed the district court’s orders. The North Dakota Supreme Court concluded the district court erred in determining that the deed conveying the property was void, but that the issue was barred by collateral estoppel. Therefore, judgment was affirmed. View "Fettig v. Fettig, et al." on Justia Law
Rocky Mountain Steel Foundations. v. Brockett Co., et al.
Rocky Mountain Steel Foundations, Inc. appealed an amended judgment ordering Mitchell’s Oil Field Services, Inc. and Travelers Casualty and Surety Company of America (collectively “Mitchell’s”) to pay Rocky Mountain attorney’s fees. Rocky Mountain argued the district court erred by failing to award it all of the attorney’s fees it requested. The North Dakota Supreme Court affirmed the portion of the judgment awarding Rocky Mountain attorney’s fees incurred before the prior appeal, but reversed the portion of the judgment denying the attorney’s fees Rocky Mountain requested for the prior appeal and on remand. The matter was remanded for the trial court to properly determine a reasonable amount of attorney’s fees. View "Rocky Mountain Steel Foundations. v. Brockett Co., et al." on Justia Law
Herman v. Herman, et al.
Paul Herman appealed a judgment entered in favor of the trustees of a family trust [collectively the Trustees] following the district court’s granting of the Trust’s motion for summary judgment. Herman argued the district court erred by finding the 120 day period to challenge the actions of the Trustees expired before he initiated these proceedings without providing him an opportunity to conduct discovery. After review, the North Dakota Supreme Court concluded the 120 day limitation period under N.D.C.C. 59-10.1-03(1) did not begin until receipt of the notice of the Trustees actions, reversed the judgment of the district court, and remanded with instructions to allow Herman additional time to conduct discovery pursuant to his request under N.D.R.Civ.P. 56(f). View "Herman v. Herman, et al." on Justia Law
Brock v. Price, et al.
Huey Brock appealed judgments dismissing his negligence action against Richard Price and KS Industries, LLC (“LLC”) and awarding Price and LLC costs and disbursements in the amount of $181,467. Price and LLC cross-appealed the judgment awarding costs and disbursements. In 2011, Brock was severely injured in a traffic accident while traveling in a company-owned vehicle with Price and another LLC employee, resulting in Brock becoming quadriplegic. Days later WSI accepted his claim for benefits. In June 2012, Brock, WSI, and LLC entered into a stipulation that Brock would continue to receive WSI benefits while seeking workers’ compensation benefits in California from KS Industries, LP (“LP”). The stipulation further provided that WSI would cease paying benefits if his claim against LP’s insurance carrier were accepted and his attorney would act in trust for WSI in pursuing reimbursement of funds paid in connection with Brock’s claim. Brock then filed an application for California workers’ compensation benefits claiming he was employed by LP at the time of the accident. Based on a California administrative decision, LP’s workers’ compensation carrier commenced paying benefits to Brock and reimbursed WSI all funds expended on Brock. In 2014, WSI issued a notice of decision reversing its prior decision accepting Brock’s claim. In February 2015, Brock brought this negligence action against Price and LLC. Brock moved for summary judgment arguing collateral estoppel based on the California administrative proceedings precluded Price and LLC from arguing LLC was Brock’s employer rather than LP, and therefore his action was not barred by the exclusive remedy provisions of North Dakota law. In November 2018, Price and LLC filed a motion for summary judgment arguing collateral estoppel did not apply and the exclusive remedy provisions applied to bar Brock’s action against LLC and his co-worker, Price. The district court agreed and dismissed the action. The North Dakota Supreme Court affirmed dismissal of the negligence action because it was indeed barred by the Workforce Safety and Insurance Act’s exclusive remedy provisions. The Court reversed the award of costs and disbursements and remanded for the court to hold a hearing on Brock’s objections required by N.D.R.Civ.P. 54(e)(2). View "Brock v. Price, et al." on Justia Law
Posted in: Civil Procedure, Government & Administrative Law, Labor & Employment Law, North Dakota Supreme Court, Personal Injury
Cichos, et al. v. Dakota Eye Institute, P.C., et al.
Plaintiffs appealed the district court’s judgment and amended judgment dismissing their complaint. In May 2016, Lyle Lima was driving his truck on a highway when he collided with a horse-drawn hay trailer. The collision killed one of the five passengers on the horse-drawn trailer and injured the others. In April 2015, a doctor at Dakota Eye Institute determined Lima to be legally blind, prepared a certificate of blindness, and instructed Lima and his spouse that he was not to drive. In April 2016, about six weeks before the collision, a second Dakota Eye Institute doctor, Briana Bohn, examined Lima. Dr. Bohn measured Lima’s vision as being “improved” and “told Lyle Lima he could drive, with some restrictions.” Plaintiffs claimed Dr. Bohn was liable for medical malpractice because Lima’s eyesight, although improved, was still below the minimum vision standards required to operate a vehicle in North Dakota under N.D. Admin. Code ch. 37-08-01. The injured parties and their representatives made a claim against Lima, which he could not fully satisfy. In partial settlement of the claim, Lima assigned his medical malpractice claim against Dakota Eye Institute and any recovery he might receive to the other plaintiffs. The injured parties and Lima then filed this suit individually and as assignees of Lima against Dr. Bohn, Dakota Eye Institute P.C., and Dakota Eye Institute LLC. The defendants filed two motions to dismiss: one arguing Lima’s claims were not assignable and should be dismissed under N.D.R.Civ.P. 12(b)(6), and one arguing the affidavit failed to meet the requirements of N.D.C.C. § 28-01-46. At the hearing on the motions, the parties also argued whether North Dakota law extends liability for medical malpractice to a third party who was not a patient. The district court granted the motions to dismiss. Before the North Dakota Supreme Court, the parties disputed whether a physician in North Dakota owed a duty to third parties to warn a patient regarding vision impairments to driving; whether medical malpractice claims were assignable; and whether the medical expert affidavit met the requirements of N.D.C.C. 28-01-46. The Supreme Court concluded physicians did not owe a duty to third parties under these circumstances, Lima’s malpractice claim was assignable, and the expert affidavit was sufficient to avoid dismissal. The matter was remanded for further proceedings. View "Cichos, et al. v. Dakota Eye Institute, P.C., et al." on Justia Law
Franciere v. City of Mandan
On August 14, 2017, Susan Franciere and her dog were attacked by another dog in Mandan. Two days later, she went to the Mandan Police Department, asserted her rights under Article I, section 25 of the North Dakota Constitution, and requested a copy of the police report on the incident under the open records law. On August 17, 2017, she called the police department and was informed the dog was undergoing a 10-day rabies quarantine. On August 18, 2017, Franciere sent a letter to the chief of police requesting the police report. On August 22, 2017, she received a phone call from a police lieutenant who told her she would not receive the report because the case was still active and no information would be released until the case was closed. In September 2017, she contacted the city attorney about the incident. In October, she filed suit in another attempt to get the records. On November 1, 2017, Franciere received a redacted version of the report. On January 13, 2018, she received an unredacted report. She appealed when her case was dismissed as moot, because Franciere eventually received the records she requested. The district court specifically declined to rule on the City’s motion to dismiss the proceedings for insufficient service of process and lack of personal jurisdiction. The North Dakota Supreme Court determined that because a determination of subject matter and personal jurisdiction had to precede any dismissal with prejudice, the court was required to resolve the motion to dismiss for insufficiency of service and lack of personal jurisdiction before dismissing the claims with prejudice on the grounds that they were moot. The judgment was vacated and the matter remanded for a ruling on the City's motion to dismiss. View "Franciere v. City of Mandan" on Justia Law
Alvarado v. N.D. Dept. of Transportation
The North Dakota Department of Transportation (NDDOT) appealed a district court judgment reversing an administrative hearing officer's decision to revoke Ewer Alvarado's driving privileges for 180 days. NDDOT argued the district court erred in finding that a partial reading of the implied consent advisory rendered Alvarado's refusal to submit to a chemical test invalid. The North Dakota Supreme Court concluded North Dakota law required an operator to refuse a request "to submit to a test under section 39-20-01." A request for testing preceded by an incomplete or inaccurate advisory was not a request "to submit to a test under section 39-20-01." Therefore, the Supreme Court affirmed the district court and reinstated Alvarado's driving privileges. View "Alvarado v. N.D. Dept. of Transportation" on Justia Law
Larson, et al. v. Tonneson, et al.
Jon Tonneson and Mary Issendorf, in her personal capacity and as personal representative of the estate of Vesper Shirley, (“defendants”) appealed a judgment quieting title to certain property in Teresa Larson, Janet Schelling, and Lynette Helgeson (“plaintiffs”). Plaintiffs and defendants were successors in interest to certain property at Lake Metigoshe in Bottineau County, North Dakota. The parties acquired their respective properties through their families beginning in the 1950s. In 2012, plaintiffs became aware of property boundary issues after a survey was conducted when plaintiffs were attempting to replace a mobile home on the property. At that time, plaintiffs also discovered a platted roadway ran through their property, though no such roadway existed on the property. Plaintiffs thereafter took steps to vacate the road. The North Dakota Supreme Court concluded the district court did not clearly err in finding Larson, Schelling, and Helgeson acquired the disputed property by adverse possession. Therefore, the Court affirmed the judgment, but remanded the case for entry of a corrected judgment. View "Larson, et al. v. Tonneson, et al." on Justia Law