Chapter 32-29.4 Uniform Family Law Arbitration Act

CHAPTER 32-01 General Provisions

32-01-01. Remedies — Classification.

Remedies in the courts of justice are divided into:

  1. Actions.
  2. Special proceedings.

Source:

C. Civ. P. 1877, § 11; R.C. 1895, § 5155; R.C. 1899, § 5155; R.C. 1905, § 6741; C.L. 1913, § 7329; R.C. 1943, § 32-0101.

Derivation:

Wait’s (N.Y.) Code, 1; Harston’s (Cal.) Practice, 21.

Cross-References.

Action for support of child, see N.D.C.C. ch. 14-08.1.

Action for spousal or child support, see N.D.C.C. ch. 14-08.

Administration of trust, see N.D.C.C. ch. 59-10.

Labor disputes and court proceedings therein, see N.D.C.C. ch. 34-08.

Special proceedings defined, see N.D.C.C. §§ 32-01-04, 32-32-01.

Notes to Decisions

Certiorari.

Certiorari is a special proceeding. City of Fargo v. Annexation Review Comm'n, 148 N.W.2d 338, 1966 N.D. LEXIS 149 (N.D. 1966).

Contempt Proceeding.

A contempt proceeding is not remedial in its character and is not a special proceeding. State ex rel. Edwards v. Davis, 2 N.D. 461, 51 N.W. 942 (1892), decided prior to the enactment of §§ 5934 and 5954, Rev. Codes (1895) (see now N.D.C.C. § 27-10-01.1 et seq.).

Criminal Prosecution.

A prosecution for a public offense is an action. State v. Rozum, 8 N.D. 548, 80 N.W. 477 (1899), distinguished, State v. Dahms, 29 N.D. 51, 149 N.W. 965 (1914) and State v. Winbauer, 21 N.D. 161, 129 N.W. 97, 1910 N.D. LEXIS 153 (N.D. 1910).

Disbarment Proceeding.

A disbarment proceeding is a special proceeding. In re Eaton, 7 N.D. 269, 74 N.W. 870, 1898 N.D. LEXIS 58 (N.D. 1898).

Examination of Defendant before Trial.

An examination of defendant before trial is not a special proceeding. West Branch Pants Co. v. Gordon, 51 N.D. 742, 200 N.W. 908, 1924 N.D. LEXIS 72 (N.D. 1924).

Foreclosure of Mortgage.

The procedure to obtain the injunctional order against foreclosure of a mortgage by advertisement was not a special proceeding. Tracy v. Scott, 13 N.D. 577, 101 N.W. 905 (1904), decided prior to the enactment of § 7841, C.L. 1913 (see now N.D.C.C. § 28-27-02).

Mandamus.

Mandamus is a special proceeding. State ex rel. Dakota Hail Ass'n v. Carey, 2 N.D. 36, 49 N.W. 164, 1891 N.D. LEXIS 22 (N.D. 1891); State ex rel. Bickford v. Fabrick, 16 N.D. 94, 112 N.W. 74, 1907 N.D. LEXIS 30 (N.D. 1907).

Pretrial Conference.

As respects the right of appeal, a pretrial conference held under the statute is not a special proceeding, but is an episode in an ordinary proceeding. La Plante v. Implement Dealers Mut. Fire Ins. Co., 73 N.D. 159, 12 N.W.2d 630, 1944 N.D. LEXIS 50 (N.D. 1944).

“Remedy” Defined.

A “remedy” is a measure employed to enforce a right or to redress an injury, and includes civil actions or special proceedings. Petition of Ecklund, 67 N.D. 140, 270 N.W. 347, 1936 N.D. LEXIS 161 (N.D. 1936).

Sale of Real Estate of Decedent.

A petition to sell real estate of decedent to pay debts is a special proceeding. Dow v. Lillie, 26 N.D. 512, 144 N.W. 1082, 1914 N.D. LEXIS 149 (N.D. 1914).

32-01-02. Action defined.

An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.

Source:

C. Civ. P. 1877, § 12; R.C. 1895, § 5156; R.C. 1899, § 5156; R.C. 1905, § 6742; C.L. 1913, § 7330; R.C. 1943, § 32-0102.

Derivation:

Wait’s (N.Y.) Code, 2; Harston’s (Cal.) Practice, 22.

Cross-References.

“Action” defined in Criminal Code, see N.D.C.C. § 12.1-01-04 (definitions of “official action” and “official proceeding”).

“Action” defined in Uniform Commercial Code, see N.D.C.C. § 41-01-09.

Notes to Decisions

Administration of Decedent’s Estate.

A petition to sell real estate of decedent to pay debts is a special proceeding. Dow v. Lillie, 26 N.D. 512, 144 N.W. 1082, 1914 N.D. LEXIS 149 (N.D. 1914).

In the administration of a decedent’s estate where vendor, who had entered into a written contract, died before completing it, and the party entitled to the conveyance had paid or was ready to pay the purchase price, the enforcement of the contract was a special proceeding. FOX v. FOX, 57 N.D. 368, 221 N.W. 889, 1928 N.D. LEXIS 140 (N.D. 1928).

Appeals.

Normally, appeals were allowed, pursuant to N.D.C.C. § 28-27-02, in “actions,” as actions were defined in N.D.C.C. § 32-01-02 and which were generally commenced by the issuance of a summons, as recognized by N.D. R. Civ. P. 3. However, appeals were also allowed from final orders entered in special proceedings, N.D.C.C. § 28-27-02, and the power to subpoena was not an ordinary proceeding but was a special proceeding, which meant that the state human services agency had a right to appeal from the administrative subpoena that it served on the state insurance reserve fund. State v. N.D. Ins. Reserve Fund, 2012 ND 216, 822 N.W.2d 38, 2012 N.D. LEXIS 230 (N.D. 2012).

Consent to Dismissal.

A party may consent to the dismissal of his action without the consent of his attorney. Paulson v. Lyson, 12 N.D. 354, 97 N.W. 533, 1903 N.D. LEXIS 45 (N.D. 1903).

Criminal Prosecution.

A prosecution for a public offense is an action. State v. Rozum, 8 N.D. 548, 80 N.W. 477 (1899), distinguished, State v. Dahms, 29 N.D. 51, 149 N.W. 965 (1914) and State v. Winbauer, 21 N.D. 161, 129 N.W. 97, 1910 N.D. LEXIS 153 (N.D. 1910).

Foreclosure of Mechanic’s Lien.

An action to foreclose a mechanic’s lien is a civil action. McCormack v. Phillips, 34 N.W. 39, 4 Dakota 506, 1887 Dakota LEXIS 15 (Dakota 1887).

Form of Action Irrelevant.

The words “action” and “proceeding”, as used in this section, include every form of action, whether founded in tort or contract. Greenleaf v. Minneapolis, S. P. & S. S. M. Ry., 30 N.D. 112, 151 N.W. 879, 1915 N.D. LEXIS 97 (N.D. 1915).

Mandamus.

Mandamus is a special proceeding. State v. Fabrick, 16 N.D. 94, 112 N.W. 74 (1907).

On an appeal from an order and judgment of the district court in a mandamus proceeding, the appellate court will not consider questions or review a question not raised in nor considered by the trial court. State ex rel. Chamberlain v. Johnstone, 65 N.D. 727, 262 N.W. 193, 1935 N.D. LEXIS 160 (N.D. 1935).

Repossession of Property.

The repossession by the vendor of a truck covered by a conditional sales contract without legal process is not an “action” within the meaning of the statute. McLean v. Underdal, 73 N.D. 74, 11 N.W.2d 102, 1943 N.D. LEXIS 63 (N.D. 1943).

Tax Intercept Procedure.

Attempted collection of child support arrearages through the tax intercept procedures is not an ordinary proceeding in a court of justice, but rather is in the form of an administrative proceeding conducted before the agency. Therefore, the statute of limitations imposed by N.D.C.C. § 28-01-16 does not apply to the tax intercept procedure. Guthmiller v. North Dakota Dep't of Human Servs., 421 N.W.2d 469, 1988 N.D. LEXIS 86 (N.D. 1988).

Workmen’s Compensation.

A proceeding under the Workmen’s Compensation Act by a claimant against the bureau is a special proceeding. Gotchy v. North Dakota Workmen's Compensation Bureau, 49 N.D. 915, 194 N.W. 663, 1923 N.D. LEXIS 42 (N.D. 1923).

Collateral References.

Action 1.

1 Am. Jur. 2d, Actions, § 4.

1A C.J.S. Actions, §§ 1, 2, 4, 5, 27-29.

32-01-03. Actions — Classification.

Actions are of two kinds:

  1. Civil.
  2. Criminal.

Source:

C. Civ. P. 1877, § 14; R.C. 1895, § 5158; R.C. 1899, § 5158; R.C. 1905, § 6744; C.L. 1913, § 7332; R.C. 1943, § 32-0103.

Derivation:

Wait’s (N.Y.) Code, 4; Harston’s (Cal.) Practice, 24.

32-01-04. Special proceeding defined.

A special proceeding is any remedy other than an action.

Source:

C. Civ. P. 1877, § 13; R.C. 1895, § 5157; R.C. 1899, § 5157; R.C. 1905, § 6743; C.L. 1913, § 7331; R.C. 1943, § 32-0104.

Derivation:

Wait’s (N.Y.) Code, 3; Harston’s (Cal.) Practice, 23.

Notes to Decisions

Administration of Decedent’s Estate.

A petition to sell real estate to pay debts of decedent is a special proceeding. Dow v. Lillie, 26 N.D. 512, 144 N.W. 1082, 1914 N.D. LEXIS 149 (N.D. 1914).

Proceeding to enforce written contract of vendor who died before he completed it, the party entitled to the conveyance having paid or being ready to pay the purchase price to the administrator, was a special proceeding. FOX v. FOX, 57 N.D. 368, 221 N.W. 889, 1928 N.D. LEXIS 140 (N.D. 1928).

Contempt Proceeding.

A contempt proceeding is not remedial in its character and is not a special proceeding. State ex rel. Edwards v. Davis, 2 N.D. 461, 51 N.W. 942 (1892), decided prior to the enactment of §§ 5934 and 5954, Rev. Codes (1895) (see now N.D.C.C. § 27-10-01.1 et seq.).

Mandamus.

Mandamus is a special proceeding. State ex rel. Dakota Hail Ass'n v. Carey, 2 N.D. 36, 49 N.W. 164, 1891 N.D. LEXIS 22 (N.D. 1891); State ex rel. Bickford v. Fabrick, 16 N.D. 94, 112 N.W. 74, 1907 N.D. LEXIS 30 (N.D. 1907).

On an appeal from an order and judgment of the district court in a mandamus proceeding, the appellate court will not consider questions or review a question not raised in nor considered by the trial court. State ex rel. Chamberlain v. Johnstone, 65 N.D. 727, 262 N.W. 193, 1935 N.D. LEXIS 160 (N.D. 1935).

Workmen’s Compensation.

A proceeding under the Workmen’s Compensation Act by a claimant against the bureau is a special proceeding. Gotchy v. North Dakota Workmen's Compensation Bureau, 49 N.D. 915, 194 N.W. 663, 1923 N.D. LEXIS 42 (N.D. 1923).

Collateral References.

Action 1.

1 Am. Jur. 2d, Actions, § 3.

1A C.J.S. Actions, §§ 1, 2, 4, 5.

32-01-05. Criminal action defined.

A criminal action is one prosecuted by the state as a party against a person charged with a public offense for the punishment thereof.

Source:

C. Civ. P. 1877, § 15; R.C. 1895, § 5159; R.C. 1899, § 5159; R.C. 1905, § 6745; C.L. 1913, § 7333; R.C. 1943, § 32-0105.

Derivation:

Wait’s (N.Y.) Code, 5.

32-01-06. Civil action defined.

A civil action is any action other than a criminal action.

Source:

C. Civ. P. 1877, § 16; R.C. 1895, § 5160; R.C. 1899, § 5160; R.C. 1905, § 6746; C.L. 1913, § 7334; R.C. 1943, § 32-0106.

Derivation:

Wait’s (N.Y.) Code, 6.

32-01-07. Process in civil action.

All process in civil actions shall run in the name of the state of North Dakota.

Source:

C. Civ. P. 1877, § 16; R.C. 1895, § 5160; R.C. 1899, § 5160; R.C. 1905, § 6746; C.L. 1913, § 7334; R.C. 1943, § 32-0107.

Derivation:

Wait’s (N.Y.) Code, 6.

32-01-08. Civil and criminal remedies not merged.

When the violation of a right admits of both a civil and a criminal remedy, the right to prosecute the one is not merged in the other.

Source:

C. Civ. P. 1877, § 17; R.C. 1895, § 5161; R.C. 1899, § 5161; R.C. 1905, § 6747; C.L. 1913, § 7335; R.C. 1943, § 32-0108.

Derivation:

Wait’s (N.Y.) Code, 7; Harston’s (Cal.) Practice, 32.

32-01-09. Civil action — One form — Plaintiff and defendant defined. [Repealed]

Superseded by N.D.R.Civ.P. 2.

32-01-10. Provisional remedies classified.

The provisional remedies in civil actions are:

  1. Claim and delivery of personal property.
  2. Attachment.
  3. Garnishment.
  4. Receivers.
  5. Deposit in court.

Source:

C. Civ. P. 1877, § 147; R.C. 1895, § 5302; R.C. 1899, § 5302; R.C. 1905, § 6888; C.L. 1913, § 7487; R.C. 1943, § 32-0110.

Cross-References.

Attachment, see N.D.C.C. ch. 32-08.1.

Claim and delivery of personal property, see N.D.C.C. ch. 32-07.

Deposit in court, see N.D.C.C. ch. 32-11.

Garnishment, see N.D.C.C. ch. 32-09.1.

Receivership, see N.D.C.C. ch. 32-10.

Notes to Decisions

Disqualification of Attorney.

Disqualification of an attorney is not a provisional remedy in a civil action. Allen v. White Drug, 346 N.W.2d 279, 1984 N.D. LEXIS 268 (N.D. 1984).

Garnishment.

Garnishment is considered a judicial remedy and is specifically designated a “provisional remedy” in a civil action. In re Da-Sota Elevator Co., 135 B.R. 873, 1991 Bankr. LEXIS 1976 (Bankr. D.N.D. 1991).

Possessory Action.

A possessory action in which the plaintiff sought to recover from the defendant one half of the grain grown on certain land was a provisional remedy. Suchy v. Strain, 51 N.D. 106, 199 N.W. 193, 1924 N.D. LEXIS 152 (N.D. 1924).

Pretrial Examination.

Right to examine defendant before trial is not a provisional remedy. West Branch Pants Co. v. Gordon, 51 N.D. 742, 200 N.W. 908, 1924 N.D. LEXIS 72 (N.D. 1924).

Similarity of Garnishment to Lien.

Practically speaking, a garnishment’s purpose is very similar to that of a lien. The garnishment summons requires a garnishee to withhold property for the benefit of a judgment creditor in order that a judgment creditor be satisfied. Generally, garnished property is to be released if the judgment creditor is satisfied with other property or by agreement of the parties. Likewise, a lender’s reason for obtaining a lien on property is to gain assurance of debt repayment. A lien on property is generally released upon repayment of the obligation on loan. If the obligation is not repayed, the lender may have the right to have the property turned over for debt satisfaction. In re Da-Sota Elevator Co., 135 B.R. 873, 1991 Bankr. LEXIS 1976 (Bankr. D.N.D. 1991).

32-01-11. Compensation for violation of private rights — Other relief, when.

As a general rule compensation is the relief or remedy provided by the law of this state for the violation of private rights and the means of securing their observance. Specific and preventive relief may be given in no cases other than those specified in this title.

Source:

Civ. C. 1877, § 1938; R.C. 1895, § 4969; R.C. 1899, § 4969; R.C. 1905, § 6554; C.L. 1913, § 7137; R.C. 1943, § 32-0111.

Derivation:

Cal. Civ. C., 3274.

Cross-References.

Preventive relief, see N.D.C.C. ch. 32-05.

Specific relief, see N.D.C.C. ch. 32-04.

Notes to Decisions

Recovery of Mandatory Fine.

The state has no statutory authority to collect money from a county when the county court has not imposed a mandatory fine for a violation, which fine should have been paid into the state treasury for the benefit of the state school fund. State ex rel. Rayl v. Hettinger County, 467 N.W.2d 98, 1991 N.D. LEXIS 53 (N.D. 1991).

32-01-12. Conditions of relief from forfeiture.

Whenever by the terms of an obligation a party thereto incurs a forfeiture, or a loss in the nature of a forfeiture, by reason of the party’s failure to comply with its provisions, the party may be relieved therefrom upon making full compensation to the other party, except in case of a grossly negligent, willful, or fraudulent breach of duty.

Source:

Civ. C. 1877, § 1939; R.C. 1895, § 4970; R.C. 1899, § 4970; R.C. 1905, § 6555; C.L. 1913, § 7138; R.C. 1943, § 32-0112.

Derivation:

Cal. Civ. C., 3275.

Notes to Decisions

Breach of Contract.

Relief from forfeiture for breach of contract may be obtained by making compensation when breach is not willful, fraudulent, or grossly negligent. Bennett v. Glaspell, 15 N.D. 239, 107 N.W. 45, 1906 N.D. LEXIS 23 (N.D. 1906).

32-01-13. How special issues not made by pleadings are tried. [Repealed]

Superseded by N.D.R.Civ.P. 39(b).

CHAPTER 32-02 Qualifications of Sureties

32-02-01. Qualifications of sureties — Personal.

Any person to be qualified to become surety on any bond or undertaking required in any court must be a resident and a householder or a freeholder in the state, and an affidavit to that effect must be annexed to the bond or undertaking. Such affidavit also shall state an amount each surety is worth above the surety’s liabilities and exemptions, and the total worth of such sureties must be double the sum named in the bond or undertaking.

Source:

C. Civ. P. 1877, § 164; R.C. 1895, § 5319; R.C. 1899, § 5319; R.C. 1905, § 6905; C.L. 1913, § 7504; R.C. 1943, § 32-0201.

Derivation:

Wait’s (N.Y.) Code, 194; Harston’s (Cal.) Practice, 494.

32-02-02. Exception to sureties.

Any party for whose benefit a bond or undertaking is required in any proceeding, within three days after service of a copy thereof, may except to the sufficiency of the sureties thereon. In such case the party furnishing such bond or undertaking either may cause the sureties to justify as hereinafter provided or to furnish a new bond or undertaking subject to like justification of sureties.

Source:

C. Civ. P. 1877, § 162; R.C. 1895, § 5317; R.C. 1899, § 5317; R.C. 1905, § 6903; C.L. 1913, § 7502; R.C. 1943, § 32-0202.

Derivation:

Wait’s (N.Y.) Code, 192; Harston’s (Cal.) Practice, 492.

32-02-03. Notice of justification.

If the party who furnished the bond excepted to elects to cause the party’s sureties to justify, the party, within three days after receipt of the notice of exception, shall give a written notice to the party excepting, of the justification of the sureties of the party who furnished the bond before the judge at the court in which the proceedings are filed, by appearance at a specified time and place, the time to be not less than three nor more than ten days thereafter.

Source:

C. Civ. P. 1877, § 163; R.C. 1895, § 5318; R.C. 1899, § 5318; R.C. 1905, § 6904; C.L. 1913, § 7503; R.C. 1943, § 32-0203.

Derivation:

Wait’s (N.Y.) Code, 193; Harston’s (Cal.) Practice, 493.

32-02-04. Attendance of witnesses.

The judge of the court before whom a justification proceeding is pending may issue and cause to be served subpoenas to compel attendance of any necessary witnesses, including the sureties excepted to, at the time and place set for such justification proceeding, or may permit their depositions to be taken in lieu of personal appearance.

Source:

R.C. 1943, § 32-0204.

32-02-05. Examination of sureties.

For the purpose of justification, each of the sureties excepted to shall appear before the judge personally or by deposition at the time and place mentioned in the notice and may be examined on oath on the part of the excepting party touching the surety’s sufficiency in such manner as the judge of the court may think proper. The examination shall be taken stenographically. The costs of the justification shall be paid by the party offering the sureties, if the same are found not sufficient, but if sufficient, then the party excepting shall pay such costs. Such costs shall be taxed by the court in which the action is pending as other costs are taxed.

Source:

C. Civ. P. 1877, § 165; S.L. 1889, ch. 21, § 1; R.C. 1895, § 5320; R. C. 1899, § 5320; R.C. 1905, § 6906; C.L. 1913, § 7505; R.C. 1943, § 32-0205.

Derivation:

Wait’s (N.Y.) Code, 193; Harston’s (Cal.) Practice, 495.

32-02-06. Finding by judge.

The judge of the court shall annex the examination to the undertaking, endorse the judge’s finding of sufficiency or insufficiency thereon, and cause the same to be filed in the office of the clerk of the court in which the action is pending.

Source:

C. Civ. P. 1877, § 166; R.C. 1895, § 5321; R.C. 1899, § 5321; R.C. 1905, § 6907; C.L. 1913, § 7506; R.C. 1943, § 32-0206.

Derivation:

Wait’s (N.Y.) Code, 196; Harston’s (Cal.) Practice, 496.

32-02-07. New bond may be furnished.

If the judge finds the sureties insufficient, the party furnishing the bond or undertaking may have three days within which to furnish a new bond or undertaking, the sureties on which also shall be subject to justification as provided herein.

Source:

C. Civ. P. 1877, § 163; R.C. 1895, § 5318; R.C. 1899, § 5318, R.C. 1905, § 6904; C.L. 1913, § 7503; R.C. 1943, § 32-0207.

Derivation:

Wait’s (N.Y.) Code, 193; Harston’s (Cal.) Practice, 493.

CHAPTER 32-03 Damages and Compensatory Relief

32-03-01. Damages for any injury.

Every person who suffers detriment from the unlawful act or omission of another may recover from the person in fault a compensation therefor in money, which is called damages.

Source:

Civ. C. 1877, § 1940; R.C. 1895, § 4971; R.C. 1899, § 4971; R.C. 1905, § 6556; C.L. 1913, § 7139; R.C. 1943, § 32-0301.

Derivation:

Cal. Civ. C., 3281.

Cross-References.

Modified comparative fault, see N.D.C.C. § 32-03.2-02.

When court may award exemplary damages, see N.D.C.C. § 32-03.2-11.

Notes to Decisions

Application and Construction.

This section does not create any duties, but only provides for a remedy should an established duty be breached. Butts Feed Lots, Inc. v. United States, 690 F.2d 669, 1982 U.S. App. LEXIS 24823 (8th Cir. N.D. 1982).

Assault and Battery.

The measure of damages for assault and battery is the detriment one party has suffered because of the unlawful act of another. Unruh v. Murray, 84 N.W.2d 730, 1957 N.D. LEXIS 140 (N.D. 1957).

Automobile Accident.

Where defendant admitted that it was his negligent act that caused plaintiff’s injuries, the only duty of the jury was to find plaintiff’s damages for those injuries. Lake v. Neubauer, 87 N.W.2d 888, 1958 N.D. LEXIS 63 (N.D. 1958) but see Trade 'N Post, L.L.C. v. World Duty Free Ams., Inc., 2001 ND 116, 628 N.W.2d 707, 2001 N.D. LEXIS 130 (N.D. 2001).

Conversion.

In an action for the claim and delivery of a note and mortgage, the measure of damages is the face amount of the instrument with legal interest to the time of trial. Holt v. Van Eps, 46 N.W. 689, 1 Dakota 206, 1875 Dakota LEXIS 13 (Dakota 1875).

In an action for the conversion of an executory contract for the sale of land, the owner is entitled to compensation for all detriment caused thereby. McKindley v. Citizens State Bank, 36 N.D. 451, 161 N.W. 601, 1917 N.D. LEXIS 163 (N.D. 1917).

False Advertising.

Where defendant engaged in false advertising resulting in a decline in plaintiff’s business and causing plaintiff to counteract with its own advertisements to mitigate damages, plaintiffs were not limited to injunctive relief under the false advertising statutes, and were allowed to collect actual and punitive damages and court costs. Fargo Women's Health Org. v. FM Women's Help & Caring Connection, 444 N.W.2d 683, 1989 N.D. LEXIS 163 (N.D. 1989), overruled in part, Trade 'N Post, L.L.C. v. World Duty Free Ams., Inc., 2001 ND 116, 628 N.W.2d 707, 2001 N.D. LEXIS 130 (N.D. 2001).

Illegal Levy by Sheriff.

The damages recoverable for an illegal levy by a sheriff are measured by the value of the property at the time of the levy, and fair compensation for the time and money expended. Keith v. Haggart, 33 N.W. 465, 4 Dakota 438, 1887 Dakota LEXIS 13 (Dakota 1887).

Malicious Prosecution and False Imprisonment.

The statute applies in an action for malicious prosecution and false imprisonment. Kaeppler v. Red River Valley Nat'l Bank, 8 N.D. 406, 79 N.W. 869, 1899 N.D. LEXIS 26 (N.D. 1899).

Obstruction of Street.

Under the rule an abutting owner is liable for damages resulting from street obstruction. Heckman v. Evenson, 7 N.D. 173, 73 N.W. 427, 1897 N.D. LEXIS 60 (N.D. 1897).

Products Liability.

Whether manufacturer of automobile which burst into flames upon being struck from rear had been negligent in design and placement of gasoline tank and whether rear-end collision of sufficient force to burst tank was reasonably foreseeable were questions for jury in wrongful death action. Johnson v. American Motors Corp., 225 N.W.2d 57, 1974 N.D. LEXIS 146 (N.D. 1974).

Retention of Money.

Interest is the measure of damages for the retention of money that is due and payable to another. Jacobson v. Mutual Benefit Health & Accident Ass'n, 70 N.D. 566, 296 N.W. 545, 1941 N.D. LEXIS 202, 1941 N.D. LEXIS 203 (N.D. 1941).

Weeds, Failure to Destroy.

A landowner is not liable for damages for failure to destroy noxious weeds until after the county commissioners have prescribed the time and manner of the destruction. Langer v. Goode, 21 N.D. 462, 131 N.W. 258, 1911 N.D. LEXIS 112 (N.D. 1911).

DECISIONS UNDER PRIOR LAW

Automobile Accident.

Under former N.D.C.C. ch. 39-15, the guest statute, which was held unconstitutional in Jacobs v. Nelson, 67 N.D. 27, 268 N.W. 873 (1936), in an action for injuries by an automobile guest against the host, the guest had the burden of proving that the acts complained of constituted gross rather than ordinary negligence. Johnson v. Hassett, 217 N.W.2d 771, 1974 N.D. LEXIS 245 (N.D. 1974).

Collateral References.

Damages 1.

22 Am. Jur. 2d, Damages, §§ 1 et seq.

25 C.J.S. Damages, §§ 1, 3.

Liability of religious association for damages for intentionally tortious conduct in recruitment, indoctrination, or related activity, 40 A.L.R.4th 1062.

Damages recoverable for wrongful discharge of at-will employee, 44 A.L.R.4th 1131.

Recovery of damages for grief or mental anguish resulting from death of child—modern cases, 45 A.L.R.4th 234.

Recoverability from tortfeasor of cost of diagnostic examinations absent proof of actual bodily injury, 46 A.L.R.4th 1151.

Excessiveness and adequacy of damages for personal injuries resulting in death of minor, 49 A.L.R.4th 1076.

Public contracts: low bidder’s monetary relief against state or local agency for nonaward of contract, 65 A.L.R.4th 93.

Fraud actions: right to recover for mental or emotional distress, 11 A.L.R.5th 88.

Secondary smoke as battery, 46 A.L.R.5th 813.

Recovery for emotional distress based on fear of contracting HIV or AIDS, 59 A.L.R.5th 535.

Products liability: liability for injury or death allegedly caused by defect in mobile home or trailer, 61 A.L.R.5th 473.

Claims for Vicarious and Individual Liability for Infliction of Emotional Distress Derived from Use of Internet and Electronic Communications, 30 A.L.R.6th 241.

Liability of Property Owners to Persons Who Have Never Been on or Near Their Property for Exposure to Asbestos Carried Home on Household Member’s Clothing, 33 A.L.R.6th 325.

Law Reviews.

For Article: The Worth of a Human Life, see 85 N.D. L. Rev. 123 (2009).

32-03-02. Detriment defined.

Detriment is a loss or harm suffered in person or property.

Source:

Civ. C. 1877, § 1941; R.C. 1895, § 4972; R.C. 1899, § 4972; R.C. 1905, § 6557; C.L. 1913, § 7140; R.C. 1943, 32-0302.

Derivation:

Cal. Civ. C., 3282.

32-03-03. Damages resulting after action commenced.

Damages may be awarded in a judicial proceeding for detriment resulting after the commencement thereof or certain to result in the future.

Source:

Civ. C. 1877, § 1942; R.C. 1895, § 4973; R.C. 1899, § 4973; R.C. 1905, § 6558; C.L. 1913, § 7141; R.C. 1943, § 32-0303.

Derivation:

Cal. Civ. C., 3283.

Notes to Decisions

Application of Law.

This section relates to subsequent damages arising out of acts done prior thereto, and which are the basis of the cause of action alleged. It does not permit proof of, and recovery of damages for, subsequent acts which are in themselves new causes of action. Mevorah v. Goodman, 74 N.W.2d 103, 1955 N.D. LEXIS 165 (N.D. 1955).

Breach of Contract.

The legal rate of interest is allowable by way of compensation as damages for breach of contract. Stutsman County v. Dakota Trust Co., 47 N.D. 228, 181 N.W. 586, 1921 N.D. LEXIS 91 (N.D. 1921).

Certain.

The word “certain” is not used in the absolute sense, and cannot be construed as embracing only those consequences or elements of damage which are absolutely certain to follow a given injury. Leonard v. North Dakota Coop. Wool Marketing Ass'n, 72 N.D. 310, 6 N.W.2d 576, 1942 N.D. LEXIS 146 (N.D. 1942).

Although trial court properly allowed expert medical witness to testify as to plaintiff’s available options for future treatment, admission of testimony by such expert as to costs of possible future surgery was prejudicial error; “certain” as used in this section required establishment of reasonable medical certainty or probability that future surgery would be necessary. Holecek v. Janke, 171 N.W.2d 94, 1969 N.D. LEXIS 86 (N.D. 1969).

Future damages must be proved with reasonable certainty; they cannot be awarded on the basis of speculative possibilities or conjecture. Olmstead v. Miller, 383 N.W.2d 817, 1986 N.D. LEXIS 287 (N.D. 1986).

Detriment After Commencement of Action.

General and special damages may be awarded for detriment resulting after an action has been commenced or certain to result in the future. Shoemaker v. Sonju, 15 N.D. 518, 108 N.W. 42, 1906 N.D. LEXIS 57 (N.D. 1906); York v. General Util. Corp., 41 N.D. 137, 170 N.W. 312, 1918 N.D. LEXIS 138 (N.D. 1918); Larson v. Russell, 45 N.D. 33, 176 N.W. 998, 1919 N.D. LEXIS 243 (N.D. 1919).

Repossession of Property.

In an action for possession of property and rent, the plaintiff may recover to the day of the verdict or judgment and, in case of appeal, to the disposition of the appeal. McLain v. Nurnberg, 16 N.D. 144, 112 N.W. 243, 1907 N.D. LEXIS 36 (N.D. 1907).

Uncertain Damages.
—Denied.

Where damages sought were both uncertain to occur and wholly speculative in amount, the district court properly denied them. Koch Hydrocarbon Co. v. MDU Resources Group, 988 F.2d 1529, 1993 U.S. App. LEXIS 4555 (8th Cir. N.D. 1993).

Collateral References.

Damages 25-29.

22 Am Jur 2d Damages §§ 480 et seq.

25 C.J.S. Damages, §§ 29-31.

Overflow of land caused by artificial construction or obstruction, 5 A.L.R.2d 302.

Award of “present worth” of prospective losses in action to recover damages for personal injury resulting in death of infant, 14 A.L.R.2d 485.

Validity of state statute providing for periodic payment of future damages in medical malpractice action, 41 A.L.R.4th 275.

Recovery of damages for grief or mental anguish resulting from death of child—modern cases, 45 A.L.R.4th 234.

32-03-04. Interest on damages.

Every person who is entitled to recover damages certain or capable of being made certain by calculation, the right to recover which is vested in the person upon a particular day, also is entitled to recover interest thereon from that day, except for such time as the debtor is prevented by law or by the act of the creditor from paying the debt.

Source:

Civ. C. 1877, § 1943; R.C. 1895, § 4974; R.C. 1899, § 4974; R.C. 1905, § 6559; C.L. 1913, § 7142; R.C. 1943, § 32-0304.

Derivation:

Cal. Civ. C., 3287.

Notes to Decisions

Arbitration Award.

Award of interest on an arbitration award would be stricken only if shown to be completely irrational. Nelson Paving Co. v. Hjelle, 207 N.W.2d 225, 1973 N.D. LEXIS 176 (N.D. 1973).

Breach of Bond.

In an action on a statutory bond given on a warrant for seizure, damages may be recovered in excess of the penalty to the extent of legal interest from the date of the breach. Krach v. Security State Bank, 43 N.D. 441, 175 N.W. 573, 1919 N.D. LEXIS 52 (N.D. 1919).

Breach of Contract.

The legal rate of interest is allowable by way of compensation as damages for breach of contract. Stutsman County v. Dakota Trust Co., 47 N.D. 228, 181 N.W. 586, 1921 N.D. LEXIS 91 (N.D. 1921).

Where amount due for breach of contract was ascertainable by calculation in accordance with the terms of the contractual agreement, interest was payable on such amount from date of breach. Metcalf v. Security Int'l Ins. Co., 261 N.W.2d 795, 1977 N.D. LEXIS 183 (N.D. 1977).

Where a corporation rejected a former employee’s offer to sell back his stock at book value during an initial sixty-day period called for in a stockholders’ agreement and then later agreed to buy the stock during a separate sixty-day period provided by the stockholders’ agreement for the parties to negotiate a mutually satisfactory price, the former employee had the right to reject the corporation’s belated offer and was awarded damages equal to what he would have received upon liquidation of the corporation and was also awarded interest on the damages calculated from the time the original offer was rejected by the corporation until money was actually paid. KBM, Inc. v. MacKichan, 438 N.W.2d 181, 1989 N.D. LEXIS 68 (N.D. 1989).

Restaurant management company was entitled to recover interest on unpaid management fees on an improperly terminated contract as of the day when the right to recover the unpaid fees vested, which was the day when the management contracts were improperly terminated. Red River Wings, Inc. v. Hoot, Inc., 2008 ND 117, 751 N.W.2d 206, 2008 N.D. LEXIS 118 (N.D. 2008).

Federal district court’s order freezing the insurance agent’s accounts and assets did not prevent the insurer from parting with the agent’s benefit while the order was in effect; this kept the annuity benefit and had the beneficial use of the funds for any purposes of its business, and the agent was entitled to prejudgment interest from January 1, 2003. Huber v. Farmers Union Serv. Ass'n of N.D., 2010 ND 151, 787 N.W.2d 268, 2010 N.D. LEXIS 155 (N.D. 2010).

Damages Capable of Being Made Certain.

Where there was uncontradicted evidence that plaintiff sustained lost profits on more than 500,000 pounds of sunflowers at two to three cents per pound, the damages were capable of being made certain to satisfy the requirements of this section and plaintiff was entitled to recover interest. Robertson Cos. v. Kenner, 311 N.W.2d 194, 1981 N.D. LEXIS 391 (N.D. 1981).

Trial court did not err in upholding jury’s award of interest where ophthalmologist failed to show that the damages awarded against him were uncertain or incapable of being made certain or that the interest was incorrectly computed. Dowhan v. Brockman, 2001 ND 70, 624 N.W.2d 690, 2001 N.D. LEXIS 84 (N.D. 2001).

Date of Commencement.

Where carrier and contractor had entered into express oral contract and carrier performed its obligations pursuant thereto, interest was properly awarded it from invoice date in action to recover transportation charges. Ets-Hokin & Galvan, Inc. v. Maas Transport, Inc., 380 F.2d 258, 1967 U.S. App. LEXIS 5673 (8th Cir. N.D.), cert. denied, 389 U.S. 977, 88 S. Ct. 481, 19 L. Ed. 2d 471, 1967 U.S. LEXIS 188 (U.S. 1967).

Awarding payee corporation, which recovered from bank for losses sustained due to bank’s cashing corporation checks which corporation’s district manager deposited to his personal account, allowance of interest from date of demand was not error since interest could have been allowed from date each check was accepted by bank. Fargo Nat'l Bank v. Massey-Ferguson, Inc., 400 F.2d 223, 1968 U.S. App. LEXIS 5676 (8th Cir. N.D. 1968).

Where the amount of plaintiff’s claim was established by defendant’s accountants prior to transfer later found to be in fraud of creditors, defendants could not complain that the claim was disputed or uncertain after that time, and therefore, plaintiff was entitled to interest from the date the amount of his claim was established, even though that date was prior to the time judgment was entered for him. Stee v. "L" Monte Indus., 247 N.W.2d 641, 1976 N.D. LEXIS 160 (N.D. 1976).

Determination of Amount of Damages.

In an action to recover damage to automobile sustained as the result of an accident where the amount of damages sought to be recovered by plaintiff was not fixed or capable of being made certain by calculation, interest could not be computed until such amount had been determined. Braaten v. Grabinski, 77 N.D. 422, 43 N.W.2d 381, 1950 N.D. LEXIS 138 (N.D. 1950).

Insurance Claims.

Where insured builder of a silo did not submit written proof of loss of his particular interest in the silo to his insurance company as provided under his builders risk policy when the silo was destroyed by winds, but instead filed a claim for the maximum amount of coverage under the policy which claim was denied by the insurance company, and from the other facts it was apparent that the insurance company would have denied the claim even if the insured had submitted written proof of his particular interest, the insured was properly awarded interest from the time of the denial of his claim in a judgment against the insurance company for benefits under the policy. Dolajak v. State Auto. & Casualty Underwriters, 278 N.W.2d 373, 1979 N.D. LEXIS 174 (N.D. 1979).

The district court did not err in determining that the amount of damages was not a sum certain and that, therefore the plaintiff was not entitled to prejudgment interest where the court was faced with a dispute over how much of a loss was covered by an insurance policy and what computation methods should be used to determine the amount of that loss. BancInsure, Inc. v. BNC Nat'l Bank, N.A., 263 F.3d 766, 2001 U.S. App. LEXIS 18494 (8th Cir. N.D. 2001).

Life Insurance.

In action by beneficiary of life policy issued by defendant to recover for the death of the insured, if the plaintiff was entitled to recover the principal sum, she was also entitled as a matter of law to interest on that sum from the day the right to recover the principal sum vested in her. Jacobson v. Mutual Benefit Health & Accident Ass'n, 70 N.D. 566, 296 N.W. 545, 1941 N.D. LEXIS 202, 1941 N.D. LEXIS 203 (N.D. 1941).

Partial Performance.

Where borrower did not tender the February and March 1993 mortgage payments until May 4, 1993, so that by that time, the April and May 1993 payments were also delinquent, the tendered payment did not bring the loan current; borrower therefore did not tender the performance of his obligation, but only tendered partial performance. While an obligation is extinguished by an offer of performance intended to extinguish the obligation, an offer of partial performance is of no effect and borrower was not released from any obligation to pay interest on the debt. Resolution Trust Corp. v. Gosbee, 536 N.W.2d 698, 1995 N.D. LEXIS 140 (N.D. 1995), cert. denied, 516 U.S. 1075, 116 S. Ct. 779, 133 L. Ed. 2d 730, 1996 U.S. LEXIS 520 (U.S. 1996).

Pleading.

This section does not waive the ordinary rules of pleading in matters relating to the recovery of interest. Steen v. Neva, 37 N.D. 40, 163 N.W. 272, 1917 N.D. LEXIS 71 (N.D. 1917).

Where a party is entitled to recover definite sum as damages on day certain, he is also entitled to recover interest thereon from that day, and such interest need not be specially demanded in pleading. Adamsen Constr. Co. v. Altendorf, 152 N.W.2d 576, 1967 N.D. LEXIS 86 (N.D. 1967).

Prejudgment Interest.
—In General.

Although judgment did not conform to the order for judgment because the judgment included prejudgment interest not mentioned in the order, prejudgment interest was required by this section; landlord was entitled to recover damages certain or capable of being made certain by calculation. Village West Assoc. v. Boeder, 488 N.W.2d 376, 1992 N.D. LEXIS 153 (N.D. 1992).

Plaintiffs were entitled to prejudgment interest from the date of the last payment under their agreement until the day a new judgment was entered. Kaler v. Kraemer, 1999 ND 237, 603 N.W.2d 698, 1999 N.D. LEXIS 263 (N.D. 1999).

District court abused its discretion in awarding prejudgment interest from the dates the Supplemental Revenue Assistance Payments Program funds were transferred from a debtor to a law firm, the law firm was the party sought to be held liable for the fraudulent transfers, the creditor's right to recover did not vest until the firm transferred the funds, the Supreme Court of North Dakota had held the district court erred in holding the firm liable for the transfer of funds to a debtor's designee, and thus, the firm was only liable for prejudgment interest from when funds designated as attorney fees were removed from the law office trust account and placed in the office business account. PHI Fin. Servs. v. Johnston Law Office, P.C., 2016 ND 20, 874 N.W.2d 910, 2016 N.D. LEXIS 20 (N.D. 2016).

—Denied.

Refusal to grant prejudgment interest on damages awarded was proper. Koch Hydrocarbon Co. v. MDU Resources Group, 988 F.2d 1529, 1993 U.S. App. LEXIS 4555 (8th Cir. N.D. 1993).

—Prisoner Medical Care.

In action seeking payment for medical bills for treatment of prisoner in county jail, hospitals were not entitled to prejudgment interest because their claims were not certain; although the county’s obligation to pay for a prisoner’s medical care is fixed by statute, the language in N.D.C.C. § 12-44.1-14(6) is ambiguous, and because the supreme court had not previously construed this section, the hospitals’ claims were uncertain and unliquidated. United Hosp. v. D'Annunzio, 514 N.W.2d 681, 1994 N.D. LEXIS 86 (N.D. 1994).

Public Dump.

The statute relating to interest on damages has no application to actions for damages sustained by an owner of realty by the establishment and operation of a public dump by the city near the owner’s realty. Donaldson v. City of Bismarck, 71 N.D. 592, 3 N.W.2d 808, 1942 N.D. LEXIS 94 (N.D. 1942).

Rate of Prejudgment Interest.

In the absence of a specific contractual rate of interest, prejudgment interest must be calculated at the prescribed legal rate of interest in legal and equitable actions. Hirschkorn v. Severson, 319 N.W.2d 475, 1982 N.D. LEXIS 282 (N.D. 1982).

Suit on Account.

Where plaintiff, who brought action to recover the balance due upon an account, was entitled to interest as a matter of right, the jury had no discretion as to its allowance. Weber Chimney Co. v. Riley, 39 N.D. 487, 167 N.W. 753, 1918 N.D. LEXIS 45 (N.D. 1918).

Unjust Enrichment.

In an action based on unjust enrichment, plaintiff did not have a vested right of recovery until judgment was rendered, and trial court did not abuse its discretion in denying interest on the amount of recovery for the time prior to the rendering of the judgment. Midland Diesel Serv. & Engine Co. v. Sivertson, 307 N.W.2d 555, 1981 N.D. LEXIS 311 (N.D. 1981).

Collateral References.

Damages 66-69.

22 Am. Jur. 2d, Damages, §§ 462 et seq.

Date of verdict or date of entry of judgment thereon as beginning of interest period on judgment, 1 A.L.R.2d 479.

Preferential payment recovered by trustee in bankruptcy, interest on, 4 A.L.R.2d 327.

Breach of contract for the sale of a commodity, interest as element of damages recoverable in action for, 4 A.L.R.2d 1388.

Specific performance, interest on rents and profits as recoverable by purchaser asserting right to, 7 A.L.R.2d 1204.

Temporary use and occupancy: damages for taking of property for temporary use and occupancy as including interest, 7 A.L.R.2d 1309.

Interpleaded or impleaded disputed funds, interest on judgment awarding, 15 A.L.R.2d 473.

Real estate broker’s statutory bond, recovery of interest in action on, 17 A.L.R.2d 1012, 1035.

Vendee’s recovery of interest as element of damages where vendor is unable or refuses to convey, 17 A.L.R.2d 1300, 1365.

Governmental unit: absence of required demand as affecting recovery of interest on claim against a governmental unit in absence of provision in contract or express statutory provision, 24 A.L.R.2d 928.

Rights as between vendor and vendee under land contract in respect of interest, 25 A.L.R.2d 951, 975.

Warehouseman guilty of negligence causing injury to, or destruction of, goods of a perishable nature, interest recoverable from, 32 A.L.R.2d 910.

Alimony, right to interest on unpaid, 33 A.L.R.2d 1455.

Rescission: recovery of interest on purchase price upon rescission by buyer of sale of domestic animal for breach of warranty, 35 A.L.R.2d 1273, 1274.

Detention of property, interest on damages for period before judgment for, 36 A.L.R.2d 337, 413.

Eminent domain, interest on damages for period before judgment for property taken under power of, 36 A.L.R.2d 337, 413.

Automobile collision insurance policy, recovery of interest by insured in action under, 43 A.L.R.2d 327.

Probate: interest on decree or judgment of probate court allowing a claim against estate or making an allowance for services, 54 A.L.R.2d 814.

Coexecutor’s or coadministrator’s liability for interest for defaults or wrongful acts of fiduciary in handling estate, 65 A.L.R.2d 1019, 1068.

Trees or shrubbery, interest as element of damages recoverable for destruction of, or injury to, 69 A.L.R.2d 1335.

Allowance of damages to successful plaintiff or relator in mandamus, 73 A.L.R.2d 903.

Commercial paper, interest on damages recoverable for conversion or loss of, 85 A.L.R.2d 1349.

Tax refund: right to interest on refund or credit in absence of specific controlling statute, 88 A.L.R.2d 823.

Eminent domain: liability, upon abandonment of eminent domain proceedings, for interest on award or judgment, 92 A.L.R.2d 355, 411.

Wrongful death damages, prejudgment interest on, 96 A.L.R.2d 1104.

Construction contract, allowance of prejudgment interest on builder’s recovery in action for breach of, 60 A.L.R.3d 487.

Measure of damages for destruction of or injury to fruit, nut, or other productive trees, 90 A.L.R.3d 800.

Measure of damages in action for breach of warranty of title to personal property under UCC sec. 2-714, 94 A.L.R.3d 583.

Measure of damages for injury to or destruction of shade or ornamental tree or shrub, 95 A.L.R.3d 508.

Measure and elements of damages in action against garageman based on failure to properly perform repair or service on motor vehicle, 1 A.L.R.4th 347.

Special or consequential damages recoverable, on account of delay in delivering possession, by purchaser of real property awarded specific performance, 11 A.L.R.4th 891.

Validity and construction of state statute or rule allowing or changing rate of prejudgment in tort actions, 40 A.L.R.4th 147.

Measure and elements of damages recoverable for attorney’s negligence in preparing or conducting litigation — Twentieth Century cases, 90 A.L.R.4th 1033.

Law Reviews.

Summary of significant decisions rendered by the North Dakota Supreme Court in 1990 relating to vendor-purchaser, 66 N.D. L. Rev. 879 (1990).

North Dakota Supreme Court Review, (Red River Wings, Inc. v. Hoot, Inc., 2008 ND 117, 751 N.W.2d 206 (2008)), see 85 N. Dak. L. Rev. 503 (2009).

32-03-05. When interest in discretion of court or jury.

In an action for the breach of an obligation not arising from contract and in every case of oppression, fraud, or malice, interest may be given in the discretion of the court or jury.

Source:

Civ. C. 1877, § 1944; R.C. 1895, § 4975; R.C. 1899, § 4975; R.C. 1905, § 6560; C.L. 1913, § 7143; R.C. 1943, § 32-0305; S.L. 1977, ch. 300, § 1.

Derivation:

Cal. Civ. C., 3288.

Notes to Decisions

Conversion Actions.

District court erred by instructing the jury it could elect not to include interest in a credit corporation’s conversion award because, the corporation elected to receive damages under N.D.C.C. § 32-03-23(1) and should have been awarded interest in addition to the value of the tractor at the time of the conversion as the award of interest was mandatory. N.D.C.C. § 32-03-23 applies specifically to conversion while N.D.C.C. § 32-03-05, applies to torts in general. Case Credit Corp. v. Oppegard's, Inc., 2005 ND 141, 701 N.W.2d 891, 2005 N.D. LEXIS 174 (N.D. 2005).

Dissolution of Partnership.

Prejudgment interest at six per cent per annum on partner’s share of accumulated profits following dissolution of the partnership was upheld. Tarnavsky v. Tarnavsky, 147 F.3d 674, 1998 U.S. App. LEXIS 12129 (8th Cir. N.D. 1998).

District court properly adopted an estate’s accounting of a partnership’s profits and losses, ordered the estate to pay the decedent’s nephew the remaining balance of his one-fourth interest from the sale of the decedent’s real property, and denied interest on the distribution because none of the partnership’s financial documents included the nephew’s wage expense in laboring for a partnership in which he, the decedent, and the decedent’s brother were partners, the nephew did not present evidence showing the estate breached an obligation or committed fraud, and his earlier distributions from the estate did not include interest. Moore v. Moore (In re Estate of Moore), 2020 ND 249, 951 N.W.2d 219, 2020 N.D. LEXIS 243 (N.D. 2020).

Judgment.

A judgment must be supported by and conform to the verdict, decision, or findings with respect to the allowance of interest and the amount thereof. Braaten v. Grabinski, 77 N.D. 422, 43 N.W.2d 381, 1950 N.D. LEXIS 138 (N.D. 1950).

Partnership Property, Illegal Sale.

Interest from the date of sale was properly allowable on the amount wrongfully withheld where it is established, in an action for accounting brought by partner against partner, that the defendant had wrongfully sold partnership property and had wrongfully withheld payment for interest of other partners. Engstrom v. Larson, 79 N.D. 188, 55 N.W.2d 579, 1952 N.D. LEXIS 112 (N.D. 1952).

Question for Jury.

The allowance of interest under this section is a question for the jury. Johnson v. Northern Pac. Ry., 1 N.D. 354, 48 N.W. 227, 1890 N.D. LEXIS 41 (N.D. 1890).

In an action to enjoin packing plant from polluting river, the allowance of interest is discretionary with the trier of the facts and not obligatory, and interest may not be awarded as a matter of law. Storley v. Armour & Co., 107 F.2d 499, 1939 U.S. App. LEXIS 2778 (8th Cir. N.D. 1939).

Supreme Court refused to disallow jury’s award of prejudgment interest on non-economic damages citing this section’s provision of discretion to the trier-of-fact to award such interest. Kreidt v. Burlington N. R.R., 2000 ND 150, 615 N.W.2d 153, 2000 N.D. LEXIS 160 (N.D. 2000).

Jury acted within its discretion in awarding interest on past noneconomic damages in a personal injury case, but prejudgment interest was not available as to future damages. Gonzalez v. Tounjian, 2003 ND 121, 665 N.W.2d 705, 2003 N.D. LEXIS 134 (N.D. 2003).

Tort Action.

In a tort action, the allowance of interest is discretionary with the jury. Seckerson v. Sinclair, 24 N.D. 625, 140 N.W. 239, 1913 N.D. LEXIS 20 (N.D. 1913).

In a tort action, a return of a verdict in excess of the ad damnum is presumed to include interest. Reichert v. Northern Pac. Ry., 39 N.D. 114, 167 N.W. 127, 1917 N.D. LEXIS 144 (N.D. 1917), limited, Froemke v. Parker, 41 N.D. 408, 171 N.W. 284, 1919 N.D. LEXIS 89 (N.D. 1919), overruled in part, Sollin v. Wangler, 2001 ND 96, 627 N.W.2d 159, 2001 N.D. LEXIS 104 (N.D. 2001).

Prejudgment interest in tort cases is governed by this section, not by N.D.C.C. § 32-03-04, which governs prejudgment interest in contract cases. Roise v. Kurtz, 1998 ND 228, 587 N.W.2d 573, 1998 N.D. LEXIS 224 (N.D. 1998).

Unjust Enrichment.

In an action based on unjust enrichment, plaintiff did not have a vested right of recovery until judgment was rendered, and trial court did not abuse its discretion in denying interest on the amount of recovery for the time prior to the rendering of the judgment. Midland Diesel Serv. & Engine Co. v. Sivertson, 307 N.W.2d 555, 1981 N.D. LEXIS 311 (N.D. 1981).

Workers’ Compensation Action.

The term “damages” within the meaning of N.D.C.C. § 65-01-09 includes the interest recovered by the injured worker in suing. Therefore, the bureau properly included interest recovered by the worker in calculating its subrogation claim. Kavadas v. North Dakota Workers Compensation Bureau, 466 N.W.2d 839, 1991 N.D. App. LEXIS 4 (N.D. Ct. App. 1991).

Collateral References.

Validity and construction of state statute or rule allowing or changing rate of prejudgment interest in tort actions, 40 A.L.R.4th 147.

Fraud actions: right to recover for mental or emotional distress, 11 A.L.R.5th 88.

Recovery for emotional distress based on fear of contracting HIV or AIDS, 59 A.L.R.5th 535.

32-03-06. When accepting principal waives interest.

Accepting payment of the whole principal as such waives all claim to interest, unless interest is provided for expressly in the contract.

Source:

Civ. C. 1877, § 1945; R.C. 1895, § 4976; R.C. 1899, § 4976; R.C. 1905, § 6561; C.L. 1913, § 7144; R.C. 1943, § 32-0306.

Derivation:

Cal. Civ. C., 3290.

32-03-07. When court or jury may give exemplary damages. [Repealed]

Repealed by S.L. 1987, ch. 404, § 13, as amended by S.L. 1993, ch. 324, § 1.

Collateral References.

Fraud actions: right to recover for mental or emotional distress, 11 A.L.R.5th 88.

Excessiveness or inadequacy of punitive damages awarded in personal injury or death cases, 12 A.L.R.5th 195.

32-03-08. When minor or incompetent subjected to exemplary damages.

A minor or person of unsound mind cannot be subjected to exemplary damages unless at the time of the act the minor or person of unsound mind was capable of knowing that it was wrongful.

Source:

Civ. C. 1877, § 24; R.C. 1895, § 2710; R.C. 1899, § 2710; R.C. 1905, § 4022; C.L. 1913, § 4347; R.C. 1943, § 32-0308.

Derivation:

Cal. Civ. C., 41.

Cross-References.

Powers of incompetents, see N.D.C.C. ch. 14-01.

Collateral References.

Excessiveness or inadequacy of punitive damages awarded in personal injury or death cases, 12 A.L.R.5th 195.

Excessiveness or inadequacy of punitive damages in cases not involving personal injury or death, 14 A.L.R.5th 242.

32-03-09. Measure of damages for breach of contract — Damages must be certain.

For the breach of an obligation arising from contract, the measure of damages, except when otherwise expressly provided by the laws of this state, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby or which in the ordinary course of things would be likely to result therefrom. No damages can be recovered for a breach of contract if they are not clearly ascertainable in both their nature and origin.

Source:

Civ. C. 1877, §§ 1947, 1948; R.C. 1895, § 4978; R.C. 1899, § 4978; R.C. 1905, § 6563; C.L. 1913, § 7146; R.C. 1943, § 32-0309.

Derivation:

Cal. Civ. C., 3300, 3301.

Notes to Decisions

Attachment.

In an action for damages on an undertaking given upon the issuance of an attachment, the damages recoverable refer only to the injury done to the property taken and not to any collateral or consequential damages resulting to the owner by the trespass. Thompson v. Webber, 29 N.W. 671, 4 Dakota 240, 1886 Dakota LEXIS 14 (Dakota 1886).

Benefit of Bargain.

The law incorporates the notion that contract damages should give the nonbreaching party the benefit of the bargain by awarding a sum of money that will put that person in as good a position as if the contract had been performed. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).

Common Law.

The rule laid down in the statute, in effect, is the common-law rule that compensation is recoverable for all detriment proximately and naturally caused by the breach of contract. Hayes v. Cooley, 13 N.D. 204, 100 N.W. 250, 1904 N.D. LEXIS 31 (N.D. 1904).

The measure of damages for breach of a contract is the same as at common law. Needham v. H. S. Halverson & Co., 22 N.D. 594, 135 N.W. 203, 1912 N.D. LEXIS 59 (N.D. 1912).

Construction Contract.

Award of damages to construction company for cost of necessary and agreed changes in contract, which were due to the fact that the city had not prepared site in accordance with specifications, was properly based on total cost of performance, where it was virtually impossible to separate equitable adjustment of consideration from damages and the total cost was supported by substantial evidence. Moorhead Constr. Co. v. Grand Forks, 508 F.2d 1008, 1975 U.S. App. LEXIS 16751 (8th Cir. N.D. 1975).

Trial court’s award of damages to excavation company based on load count was not clearly erroneous where developer failed to perform an initial cross-sectioning of area to be excavated as required by the contract, thereby preventing a more accurate calculation. Wachter v. Gratech Co., 2000 ND 62, 608 N.W.2d 279, 2000 N.D. LEXIS 65 (N.D. 2000).

Company argued that the district court erred in holding the company liable to the county for prompt payment interest, but this was not ordered, and instead, the district court ordered the company to share in satisfying the damages that flowed from its breach of contract; prompt payment interest was a detriment at least partially caused by the company’s failure to honor its contractual commitment, the company was not in a position to complain about mitigation of damages, and the damages findings were not clearly erroneous. C&C Plumbing & Heating, LLP v. Williams County, 2014 ND 128, 848 N.W.2d 709, 2014 N.D. LEXIS 126 (N.D. 2014).

District court did not abuse its discretion in denying the motion for a new trial based on excessive damages influenced by prejudice or passion where the jury heard testimony regarding the total cost of the building, the structural deficiencies of the building, and the potential costs for demolition of the building, the jury was instructed that potential damages were not limited to the contract price, and the contractor did not object to allegedly prejudicial statements made during closing statements. Jalbert v. Eagle Rigid Spans, Inc., 2017 ND 50, 891 N.W.2d 135, 2017 N.D. LEXIS 44 (N.D. 2017).

Difference of Value.

The purpose of the difference of value alternative is to avoid unreasonable economic waste when the destruction of usable property and subsequent reconstruction of property is necessary for completion in accordance with the construction contract. Biteler's Tower Serv. v. Guderian, 466 N.W.2d 141, 1991 N.D. LEXIS 16 (N.D. 1991).

Diminution in Value.

Because the estimated cost to repair the property to return it to the condition when the commercial lease began was approximately $2.7 million, and the evidence established the cost of repairing the property was significantly higher than the diminution in value, diminution of value was the correct measure of damages; however, because the evidence established the property was worth the same regardless of whether the repairs were made, there would be no damages under the diminution of value measure, and the district court did not err in failing to award the lessor damages for its breach of contract claim related to the lessee’s failure to repair the parking area. Three Aces Props. LLC v. United Rentals (N. Am.), Inc., 2020 ND 258, 952 N.W.2d 64, 2020 N.D. LEXIS 270 (N.D. 2020).

Employment Contract.

One who has wrongfully and fraudulently put an end to a contract of employment cannot say that the party injured has not been damaged at least to the amount of what he has been induced, fairly and in good faith, to lay out and expend, including his own services. McLean v. News Publishing Co., 21 N.D. 89, 129 N.W. 93, 1910 N.D. LEXIS 152 (N.D. 1910).

The correct measure of damages due an improperly discharged schoolteacher was his wages for the entire school term less the amount earned or that he could have earned by reasonable efforts in employment obtained after his discharge. Miller v. South Bend Special Sch. Dist., 124 N.W.2d 475, 1963 N.D. LEXIS 123 (N.D. 1963).

A school district being sued for breach of employment contract must assume the burden of proving that the wrongfully discharged teacher did not reasonably attempt to minimize his damages by seeking other employment. Miller v. South Bend Special Sch. Dist., 124 N.W.2d 475, 1963 N.D. LEXIS 123 (N.D. 1963).

Where a wrongfully discharged employee has been able to obtain only one type of substitute employment during a three-month period from the time of his wrongful discharge to the time of trial, the probability that he will be unable to obtain other employment during the remaining two months of the original term of employment is sufficiently great that damages are clearly ascertainable. Miller v. South Bend Special Sch. Dist., 124 N.W.2d 475, 1963 N.D. LEXIS 123 (N.D. 1963).

District court’s findings of damages were within the evidence and testimony provided. The evidence supported the district court’s findings that because defendant employees breached their proprietary information agreements and employment contracts, plaintiff employer would have suffered damages. SolarBee, Inc. v. Walker, 2013 ND 110, 833 N.W.2d 422, 2013 N.D. LEXIS 111 (N.D. 2013).

Employer did not show the employer overpaid employees commissions because (1) the parties presented conflicting damages evidence, and (2) a lack of inventories barred finding overpayment under a certain contract. Serv. Oil, Inc. v. Gjestvang, 2015 ND 77, 861 N.W.2d 490, 2015 N.D. LEXIS 77 (N.D. 2015).

Farm Equipment, Failure to Deliver.

Damages to grain from rain were recoverable against a seller for failure to deliver a threshing machine on date fixed in the contract. Lindsay v. Nichols & Shepard Threshing Mach. Co., 59 N.D. 313, 229 N.W. 808, 1930 N.D. LEXIS 144 (N.D. 1930).

Full Contract Price.

The general rule is that the seller’s remedy for the buyer’s breach of an executory contract to purchase an ongoing business is to recover damages for the difference between the contract price and the fair market value of the business on the date of the breach. However, in the case of an executed contract, where the seller has fully performed and the buyer has breached by refusing to pay the agreed-upon price, the seller may sue for the full contract price. D.G. Porter, Inc. v. Fridley, 373 N.W.2d 917, 1985 N.D. LEXIS 399 (N.D. 1985).

Insurance Policy, Failure to Defend Insured.

Where an insurer refuses to defend actions against insured arising out of a risk which insurer claims is not covered by the policy, and such risk is thereafter found by the court to be within the policy coverage, the failure to defend is a breach of the insurance contract which renders insurer liable for all costs and expenses incurred by insured in defending the actions. Prince v. Universal Underwriters Ins. Co., 143 N.W.2d 708, 1966 N.D. LEXIS 164 (N.D. 1966).

Limit on Recovery.

For a breach of contract, the injured party is entitled to compensation for the loss suffered, but can recover no more than would have been gained by full performance. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).

Where the lessee did not meet the higher standard required to support an award of specific performance, by clearly showing that the legal remedy of damages was inadequate, and where evidence fell short of proving monetary damages could not have been a sufficient remedy for securing and farming land in another location, the trial court did not abuse its discretion in failing to award specific performance. The mere uncertainty as to the exact amount does not preclude recovery, yet, damages that are not clearly ascertainable in their nature and origin cannot be recovered pursuant to N.D.C.C. § 32-03-09. Damages for breach of a farm lease beyond one year are not speculative and uncertain as a matter of law; however, on the record in this case, damages were not clearly ascertainable and would have been speculative. Livinggood v. Balsdon, 2006 ND 11, 709 N.W.2d 723, 2006 N.D. LEXIS 17 (N.D. 2006).

Lost Profits.

A party is entitled to recover for the detriment caused by the defendant’s breach, including lost profits if they are reasonable and not speculative. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).

Where a plaintiff offers evidence estimating anticipated profits with reasonable certainty, they may be awarded. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).

Mitigation of Damages.

In a case in which a farmer sued a property owner for breach of a farm lease, the evidence supported the trial court’s finding that the farmer unsuccessfully tried to mitigate his damages by looking for other farmland to rent. Even if the farmer had been able to find other farmland to rent, it would not have been replacement land but land to expand his farming operation, and therefore it would not have reduced his damages. Hanson v. Boeder, 2007 ND 20, 727 N.W.2d 280, 2007 N.D. LEXIS 20 (N.D. 2007).

In an action by a general contractor against a subcontractor for breach of contract, the court did not clearly err in failing to offset the contractor’s damage award by the cost of unused pipe that the contractor purchased and failed to resell and for its refusal to allow the subcontractor to retry the contracted work as the evidence could support view that the leftover pipe could not be sold in the marketplace and that the subcontractor’s proposals to retry the work were not feasible; thus, the finding that the general contractor did not fail to mitigate damages was not clearly erroneous. Coughlin Constr. Co. v. Nu-Tec Indus., 2008 ND 163, 755 N.W.2d 867, 2008 N.D. LEXIS 166 (N.D. 2008).

Trial court did not clearly err by determining that the truck owner failed to mitigate its damages by not taking the truck to another repair shop after paying for the completed repairs on the truck to avoid future lost profits. Peterbilt of Fargo, Inc. v. Red River Trucking, LLC, 2015 ND 140, 864 N.W.2d 276, 2015 N.D. LEXIS 139 (N.D. 2015).

Modified Net Profit.

The method used by the trial court to derive net profits (a “modified net profit” approach) was improper, because it did not restrict the expenses that were deductible from the contract price to those which would have been incurred but for the breach of the contract, i.e., those expenses plaintiff did not have to pay because the defendant kept him from doing the work. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).

Proximately Caused.

Damages are proximately caused by a breach when they directly and naturally flow from the breach. First Nat'l Bank v. Burich, 367 N.W.2d 148, 1985 N.D. LEXIS 300 (N.D. 1985).

District court did not apply an incorrect legal standard on causation in finding that no damages resulted from the breach of an assignment of a sublease because it was not shown that a lender would have cured a breach of the sublease if given notice and opportunity; the proximate causation standard under this section did not incorporate a "reasonable lender" standard. First Dakota Nat'l Bank v. Eco-Energy, LLC, 881 F.3d 615, 2018 U.S. App. LEXIS 15951 (8th Cir. Neb. 2018).

Real Estate Contract.

This section was inapplicable to action for damages for breach of an agreement to convey an interest in real estate. Missouri Slope Livestock Auction v. Wachter, 107 N.W.2d 349, 1961 N.D. LEXIS 59 (N.D. 1961).

It was reversible error to base instructions on this section in action against seller for delay in conveying real estate; instructions should have been given on wrongful occupation of the property under N.D.C.C. § 32-03-21. Bumann v. Maurer, 203 N.W.2d 434, 1972 N.D. LEXIS 112 (N.D. 1972).

Seed Grain Warranty.

On the sale of seed grain under an implied warranty of fitness, the proper measure of damages for breach of the warranty resulting in a partial failure of the crop is the diminution in the crop value due to the breach. McLane v. F. H. Peavey & Co., 72 N.D. 468, 8 N.W.2d 308, 1943 N.D. LEXIS 82 (N.D. 1943).

Service Contract.

Where the contract is for service and the breach prevents the performance of that service, the value of the contract consists of two items: (1) The party’s reasonable expenditures toward performance, including costs paid, material wasted, and time and services spent on the contract, and (2) the anticipated profits. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).

Statutory Rule.

Where a contract is silent upon the measure of damages for its breach, the statutory rule prevails. Russell v. Olson, 22 N.D. 410, 133 N.W. 1030, 1911 N.D. LEXIS 60 (N.D. 1911).

Substantial Compliance.

Substantial compliance does not release a party from its obligation to respond in damages for injury resulting from a breach of contract. Biteler's Tower Serv. v. Guderian, 466 N.W.2d 141, 1991 N.D. LEXIS 16 (N.D. 1991).

Where a construction company had an oral contract with property owner to pour two concrete driveways on his property and the court had determined that the property owner had acquiesced to a time-and-materials price for the project and where the property owner had claimed a reduction in the balance owed to the construction company based upon a failure to substantially perform the contract, the district court did not err in refusing to reduce the amount owed to the construction company as the owner had not provided sufficient evidence regarding the diminution of value of the driveway to satisfy the requirements of N.D.C.C. § 32-03-09. There was no testimony from any expert regarding the usual life expectancy of similar concrete driveways; the value of this driveway, other than the time-and-materials invoice prepared by the construction company; or the cost of removing and replacing the driveway and, thus, the district court could reasonably conclude that the testimony that the life expectancy was reduced “30-40%” was too speculative to find diminution of value. Curtis Constr. Co. v. Am. Steel Span, Inc., 2005 ND 218, 707 N.W.2d 68, 2005 N.D. LEXIS 262 (N.D. 2005).

Collateral References.

Damages 117-126.

22 Am. Jur. 2d, Damages, §§ 44 et seq.

25 C.J.S. Damages, §§ 108-121.

Right to recover, in action for breach of contract, expenditures incurred in preparation for performance, 17 A.L.R.2d 1300, 1365.

Market price: necessity that buyer, relying on market price as measure of damages for seller’s breach of sales contract, show that goods in question were available for market at price shown, 20 A.L.R.2d 819.

Measure of damages for refusal of corporation or its agent to register or effectuate transfer of stock, 22 A.L.R.2d 12.

Manufacturer: measure of damages for buyer’s breach of contract to purchase article from dealer or manufacturer’s agent, 24 A.L.R.2d 1008.

Architects: measure of damages recoverable from architect or other person furnishing plans for defects or insufficiency of work attributable thereto, 25 A.L.R.2d 1085.

Procuring breach of contract, 26 A.L.R.2d 1227.

Automobile collision insurance policy, measure of recovery by insured under, 43 A.L.R.2d 327.

Measure and elements of damages recoverable for breach of contract to support person, 50 A.L.R.2d 613.

Attorney: measure and basis of attorney’s recovery on express contract fixing noncontingent fees, where he is discharged without cause or fault on his part, 54 A.L.R.2d 604.

Employer’s damages for breach of employment contract by employee’s terminating employment, 61 A.L.R.2d 1008, 1010.

Lessee’s breach of agreement to erect building, measure and items of damages for, 63 A.L.R.2d 1110.

Marriage: measure and elements of damages for breach of contract to marry, 73 A.L.R.2d 553.

Minerals: damages for breach of implied obligation of purchaser to conduct search for, or to develop or work premises for, minerals other than oil and gas, 76 A.L.R.2d 721, 748.

Grower: measure of damages in action by grower under contract between grower of vegetable or fruit crops, and purchasing processor, packer, or canner, 87 A.L.R.2d 732, 779.

Lease: breach of contract to lease by lessor, 88 A.L.R.2d 1024, 1032.

Advertiser: measure of damages, to advertiser, for radio or television station’s breach or wrongful termination of contract, 90 A.L.R.2d 1199.

Water well drilling contract, driller’s damages for breach of, 90 A.L.R.2d 1346, 1405.

Notice: extent of recovery for attempt to terminate employment or agency contract upon shorter notice than that stipulated in contract, 96 A.L.R.2d 272, 277.

Drilling: right and measure of recovery for breach of obligation to drill exploratory oil or gas wells, 4 A.L.R.3d 284.

Profits: recovery for loss of profits from contemplated sale or use of land, where vendor fails or refuses to convey, 11 A.L.R.3d 719.

Schoolteacher: elements and measure of damages in action by schoolteacher for wrongful discharge, 22 A.L.R.3d 1047.

Franchises: damages to franchisee for failure of franchisor of national brand or service to provide the services or facilities contracted for, 41 A.L.R.3d 1436.

Insurer’s liability for consequential or punitive damages for wrongful delay or refusal to make payments due under contract, 47 A.L.R.3d 314.

Liability of insurance broker or agent to insured for failure to procure insurance, 64 A.L.R.3d 398.

Wills: measure of damages for breach of contract to will property, 65 A.L.R.3d 632.

Liability of insurance agent or broker on ground of inadequacy of life, health, and accident insurance procured, 72 A.L.R.3d 735.

Liability of insurance agent or broker on ground of inadequacy of property insurance coverage procured, 72 A.L.R.3d 747.

Liability for interference with invalid or unenforceable contract, 96 A.L.R.3d 1294.

Measure and elements of damages in action against garageman based on failure to properly perform repair or service on motor vehicle, 1 A.L.R.4th 347.

Liability of termite or other pest control or inspection contractor for work or representations, 32 A.L.R.4th 682.

Recovery of punitive damages for breach of building or construction contract, 40 A.L.R.4th 110.

Amount of appropriation as limitation on damages for breach of contract recoverable by one contracting with government agency, 40 A.L.R.4th 998.

Modern status of rule as to whether cost of correction or difference in value of structures is proper measure of damages for breach of construction contract, 41 A.L.R.4th 131.

Punitive damages for interference with contract or business relationship, 44 A.L.R.4th 1078.

Damages for breach of contract as affected by income tax considerations, 50 A.L.R.4th 452.

Equipment leasing expense as element of construction contractor’s damages, 52 A.L.R.4th 712.

Recoverability of compensatory damages for mental anguish or emotional distress for breach of contract to lend money, 52 A.L.R.4th 826.

Application to commercial lease of rule that lease may be canceled only for “material” breach, 54 A.L.R.4th 595.

Recoverability of compensatory damages for mental anguish or emotional distress for breach of service contract, 54 A.L.R.4th 901.

Construction and effect of “changed conditions” clause in public works or construction contract with state or its subdivision, 56 A.L.R.4th 1042.

Specificity of description of premises as affecting enforceability of contract to convey real property — modern cases, 73 A.L.R.4th 135.

Recovery of attorneys’ fees and costs of litigation incurred as result of breach of agreement not to sue, 9 A.L.R.5th 933.

Liability of contractor who abandons building project before completion for liquidated damages for delay, 15 A.L.R.5th 376.

Liability of insurance agent or broker on ground of inadequacy of liability-insurance coverage procured, 60 A.L.R.5th 165.

32-03-09.1. Measure of damages for injury to property not arising from contract.

The measure of damages for injury to property caused by the breach of an obligation not arising from contract, except when otherwise expressly provided by law, is presumed to be the reasonable cost of repairs necessary to restore the property to the condition it was in immediately before the injury was inflicted and the reasonable value of the loss of use pending restoration of the property, unless restoration of the property within a reasonable period of time is impossible or impracticable, in which case the measure of damages is presumed to be the difference between the market value of the property immediately before and immediately after the injury and the reasonable value of the loss of use pending replacement of the property. Restoration of the property shall be deemed impracticable when the reasonable cost of necessary repairs and the reasonable value of the loss of use pending restoration is greater than the amount by which the market value of the property has been diminished because of the injury and the reasonable value of the loss of use pending replacement.

Source:

S.L. 1961, ch. 231, § 1.

Notes to Decisions

Automobile Damage.

Fact that automobile owner was no mechanic and had not had considerable experience in repairing automobiles did not preclude him from expressing opinion whether it was possible to restore automobile to condition it was in immediately before collision where owner had been employed on occasion as appraiser, had appraised 25 to 30 automobiles, had taught computation of depreciation in business mathematics course and had, in connection therewith, made many visits to body shop where he discussed practical problems of appraisals with other instructors; owner was entitled to out-of-pocket costs of $182 for transportation while automobile was being repaired even though he recovered damages in amount based on diminution in car’s market value and did not replace it. Intlehouse v. Rose, 153 N.W.2d 810, 1967 N.D. LEXIS 94 (N.D. 1967).

Automobile Engine.

Where engine was negligently repaired by garage and had to be replaced by defendant while on a trip out of state, and the cost of replacement was less than the estimated cost of repairing the damaged engine, trial court properly assessed car owner’s damages as replacement cost of the engine. Randall v. Anderson, 286 N.W.2d 515, 1979 N.D. LEXIS 336 (N.D. 1979).

Basis for Calculating Damages.

Where plaintiffs damaged the defendants’ land by placing approximately 3556 cubic yards of fill over 1.8 acres of the land, defendants were awarded damages based upon their proposed method of restoration which required removing the fill placed on the land and restoring the land to its previous condition. North Shore v. Wakefield, 530 N.W.2d 297, 1995 N.D. LEXIS 52 (N.D. 1995).

Construction with Other Law.

Civil tort statute, N.D.C.C. § 32-03-09.1, explicitly references repair costs and diminutions in fair market value, but N.D.C.C. § 32-03-09.2, which provides for criminal liability for willful property damage, simply states that any person convicted of criminal mischief shall be responsible for the actual damages caused to real and personal property. The legislature chose the broader term “actual damages” because it sought to ensure that criminal victims and courts would have greater flexibility in measuring damages in cases of criminal mischief; implicitly, this flexibility encompasses use of replacement costs, among other measures, where appropriate. State v. Tupa, 2005 ND 25, 691 N.W.2d 579, 2005 N.D. LEXIS 25 (N.D. 2005).

Diminution in Value.

Diminution in value method for calculating measure of damages is applicable only when restoration of property is impossible or impracticable; restoration is impracticable when it costs more than amount by which property value has been reduced. Roll v. Keller, 356 N.W.2d 154, 1984 N.D. LEXIS 407 (N.D. 1984).

The thrust of this section is that either the cost to repair or the diminution in value, whichever is lower, is the measure which should be applied. Jablonsky v. Klemm, 377 N.W.2d 560, 1985 N.D. LEXIS 432 (N.D. 1985).

Evidence.

Because there was no evidence in the record establishing the cost of restoration, trial court did not err in awarding damages based on diminution in value of plaintiffs’ lands in action for damages caused by improper drainage by adjacent landowner. Lang v. Wonnenberg, 455 N.W.2d 832, 1990 N.D. LEXIS 104 (N.D. 1990).

Loss of Use.

Damages for loss of use may be awarded in addition to diminution in the value of the property. Lang v. Wonnenberg, 455 N.W.2d 832, 1990 N.D. LEXIS 104 (N.D. 1990).

Plaintiff’s Election of Measure of Damages.

When either diminution in value or cost of restoration is the appropriate measure of damages in a given case, plaintiff has the right to elect the measure deemed more accurate and, if defendant disagrees, he has the burden to prove the alternative measure is more appropriate. Plaintiffs were not required to present evidence of both measures of value. Lang v. Wonnenberg, 455 N.W.2d 832, 1990 N.D. LEXIS 104 (N.D. 1990).

Summary judgment appropriate where the plaintiff had been fully compensated for the loss of his pickup truck when he accepted the cost of the repair to his vehicle and could not then demand damages in the amount of the difference between the cost of a new truck and the amount received upon trading in the repaired truck. Sullivan v. Pulkrabek, 2000 ND 107, 611 N.W.2d 162, 2000 N.D. LEXIS 110 (N.D. 2000).

Restitution.

State had no statutory right to appeal a restitution order in a criminal case because, although an order for restitution affected with finality the State’s ability to obtain recompense for a crime victim, the victim could seek recovery of damages independent from any action by the State in a civil action to recover other or additional damages suffered as a result of the crime; and the right of restitution would not be undermined or lost without appellate review as the victim could maintain a civil action seeking recovery of damages. State v. Conry, 2020 ND 247, 951 N.W.2d 226, 2020 N.D. LEXIS 237 (N.D. 2020).

Law Reviews.

North Dakota Supreme Court Review (State ex rel. v. Center Mutual Insurance Co.), 83 N.D. L. Rev. 1085 (2007).

32-03-09.2. Liability for willful damages to property.

Any person convicted of criminal mischief shall be responsible for the actual damages to real and personal property and such damages may be recovered in a civil action in a court of competent jurisdiction. Additionally, any minor against whose parents a judgment may be entered pursuant to section 32-03-39 for damages resulting from action of the minor shall be jointly and severally liable with the parents of the minor for such action up to the maximum amount provided in section 32-03-39 and solely liable for any damages over that amount. Any judgment rendered pursuant to this section shall not be discharged in bankruptcy and shall not be subject to the statutes of limitations provided in chapter 28-01, nor shall such judgment be canceled pursuant to section 28-20-35.

Source:

S.L. 1977, ch. 302, § 1.

Notes to Decisions

Bankruptcy.

Where a judgment creditor obtained a default judgment against a Chapter 7 debtor on a claim of vandalism under N.D.C.C. § 32-03-09.2, in connection with the damage to property of the creditor’s insured, the debtor was not collaterally estopped from seeking a discharge of the debt because that portion of N.D.C.C. § 32-03-09.2 that provided that any judgment rendered pursuant to it shall not be discharged in bankruptcy was superseded by 11 U.S.C.S. § 523(a)(6) pursuant to U.S. Const. art. I, § 8. Acuity v. Wieser (In re Wieser), 2007 Bankr. LEXIS 4493 (Bankr. D.N.D. Apr. 4, 2007).

Method of Determining Damages.

Civil tort statute, N.D.C.C. § 32-03-09.1, explicitly references repair costs and diminutions in fair market value, but N.D.C.C. § 32-03-09.2, which provides for criminal liability for willful property damage, simply states that any person convicted of criminal mischief shall be responsible for the actual damages caused to real and personal property. The legislature chose the broader term “actual damages” because it sought to ensure that criminal victims and courts would have greater flexibility in measuring damages in cases of criminal mischief; implicitly, this flexibility encompasses use of replacement costs, among other measures, where appropriate. State v. Tupa, 2005 ND 25, 691 N.W.2d 579, 2005 N.D. LEXIS 25 (N.D. 2005).

There is a fundamental connection between the aim of N.D.C.C. § 32-03-09.2 and N.D.C.C. § 12.1-32-08, the criminal restitution statute; specifically, there is a strong correlation between the term “actual damages” in N.D.C.C. § 32-03-09.2 and the requirement that damages be “actually incurred” under the restitution statute. Thus, if replacement costs are applicable in one of these contexts, it seems only reasonable to permit their use in the other context as well. State v. Tupa, 2005 ND 25, 691 N.W.2d 579, 2005 N.D. LEXIS 25 (N.D. 2005).

32-03-10. Damages for breach of obligation to pay money.

The detriment caused by the breach of an obligation to pay money only is deemed to be the amount due by the terms of the obligation, with interest thereon.

Source:

Civ. C. 1877, § 1949; R.C. 1895, § 4979; R.C. 1899, § 4979; R.C. 1905, § 6564; C.L. 1913, § 7147; R.C. 1943, § 32-0310.

Derivation:

Cal. Civ. C., 3302.

Notes to Decisions

Exclusive Nature of Workers’ Compensation Act.

It is significant that this section is not part of Title 65, the Workers’ Compensation Act. The courts have previously said that “the North Dakota workers’ compensation program is mandatory, comprehensive, and exclusive. All rights and obligations under the program are determined by Title 65, N.D.C.C.” Because the Workers’ Compensation Act is comprehensive, the courts do not look to other portions of the Century Code when defining rights and obligations pursuant to it or when construing its provisions. Effertz v. North Dakota Workers' Compensation Bureau, 481 N.W.2d 218, 1992 N.D. LEXIS 28 (N.D. 1992).

Warrants, Special Assessment Funds.

If warrants on special assessment funds, and interest coupons attached thereto, do not specify the rate of interest, they draw interest at the statutory rate. Drexel State Bank v. La Moure, 207 F. 702, 1913 U.S. Dist. LEXIS 1346 (D.N.D. 1913).

32-03-11. Damages for breach of covenants in grants.

The detriment caused by the breach of a covenant of seizin, of right to convey, of warranty, or of quiet enjoyment, in a grant of an estate in real property, is deemed to be:

  1. The price paid to the grantor, or if the breach is partial only, such proportion of the price as the value of the property affected by the breach bore at the time of the grant to the value of the whole property.
  2. Interest thereon for the time during which the grantee derived no benefit from the property, not exceeding six years.
  3. Any expense properly incurred by the covenantee in defending the covenantee’s possession.

Source:

Civ. C. 1877, § 1951; R.C. 1895, § 4981; R.C. 1899, § 4981; R.C. 1905, § 6566; C.L. 1913, § 7149; R.C. 1943, § 32-0311.

Derivation:

Cal. Civ. C., 3304.

Notes to Decisions

Covenant of Seizin.

Where the conveyance passes nothing to the grantee, the measure of damages for the breach of covenant of seizin is prima facie the consideration paid by the grantee with interest. Beulah Coal Mining Co. v. Heihn, 46 N.D. 646, 180 N.W. 787, 1920 N.D. LEXIS 71 (N.D. 1920).

Covenants Running with Land.

The only covenants which run with the land are those of warranty for quiet enjoyment, and for further assurance. Gale v. Frazier, 30 N.W. 138, 4 Dakota 196, 1886 Dakota LEXIS 15 (Dakota 1886), aff'd, 144 U.S. 509, 12 S. Ct. 674, 36 L. Ed. 521, 1892 U.S. LEXIS 2094 (U.S. 1892); Bowne v. Wolcott, 1 N.D. 497, 48 N.W. 426, 1891 N.D. LEXIS 15 (N.D. 1891).

Variations from Rule.

The statutory rule is not iron clad but is subject to the same variations as the common-law rule previously existing. Bowne v. Wolcott, 1 N.D. 415, 48 N.W. 336, 1891 N.D. LEXIS 6 (N.D. 1891).

Collateral References.

Measure of damages for breach of covenant for quiet enjoyment in lease, 41 A.L.R.2d 1414, 1454.

32-03-12. Damages for breach of covenant against encumbrances.

The detriment caused by the breach of a covenant against encumbrances in a grant of an estate in real property is deemed to be the amount which has been expended actually by the covenantee in extinguishing either the principal or interest thereof, not exceeding in the former case a proportion of the price paid to the grantor, equivalent to the relative value at the time of the grant of the property affected by the breach as compared with the whole, or, in the latter case, interest on a like amount.

Source:

Civ. C. 1877, § 1952; R.C. 1895, § 4982; R.C. 1899, § 4982; R.C. 1905, § 6567; C.L. 1913, § 7150; R.C. 1943, § 32-0312.

Derivation:

Cal. Civ. C., 3305.

Notes to Decisions

Failure of Consideration.

The defense of a total or partial failure of consideration may be interposed in an action on promissory notes given for the purchase price of land in case of breach of a covenant against encumbrances, if the maker has paid off the encumbrances. Dahl v. Stakke, 12 N.D. 325, 96 N.W. 353, 1903 N.D. LEXIS 35 (N.D. 1903).

32-03-13. Damages for breach of agreement to convey realty.

The detriment caused by the breach of an agreement to convey an estate in real property is the difference between the price agreed to be paid and the value of the estate agreed to be conveyed at the time of the breach and the expenses properly incurred in examining the title, and in preparing to enter upon the land, and the amount paid on the purchase price, if any, with interest thereon from the time of the breach.

Source:

Civ. C. 1877, § 1953; R.C. 1895, § 4983; R.C. 1899, § 4983; R.C. 1905, § 6568; C.L. 1913, § 7151; R.C. 1943, § 32-0313.

Derivation:

Cal. Civ. C., 3306.

Notes to Decisions

Assessment of General Damages.

In action for breach of contract to sell land, an allegation in the complaint that the plaintiff has sustained damages in a certain amount is sufficient to justify the assessment of general damages. Merritt v. Adams County Land & Inv. Co., 29 N.D. 496, 151 N.W. 11, 1915 N.D. LEXIS 25 (N.D. 1915).

Delay in Conveying.

This section applies to situations in which specific performance of real estate contract is impossible or impracticable; where performance is merely delayed, N.D.C.C. § 32-03-21 applies. Bumann v. Maurer, 203 N.W.2d 434, 1972 N.D. LEXIS 112 (N.D. 1972).

Expenses of Buyer.

In an action for damages for breach of contract to convey real estate, the measure of damages is the difference between the price to be paid under the contract and the value of the land at the time of breach, plus the expenses incurred by the buyer in examining title and preparing to use the land. Missouri Slope Livestock Auction v. Wachter, 107 N.W.2d 349, 1961 N.D. LEXIS 59 (N.D. 1961).

Collateral References.

Vendor and Purchaser 351.

77 Am. Jur. 2d, Vendor and Purchaser, §§ 441 et seq.

92 C.J.S. Vendor and Purchaser, §§ 687-695.

Specific performance, legal damages recoverable as for breach of contract by purchaser asserting right to, 7 A.L.R.2d 1204.

Vendee’s recovery under executory contract for purchase of real property where vendor is unable or refuses to convey, 17 A.L.R.2d 1300, 1365.

Preparation: right to recover, in action for breach of contract to convey lands, expenditures incurred in preparation for performance, 17 A.L.R.2d 1300, 1365.

Profits: recovery for loss of profits from contemplated sale or use of land, where vendor fails or refuses to convey, 11 A.L.R.3d 719.

Special or consequential damages recoverable, on account of delay in delivering possession, by purchaser of real property awarded specific performance, 11 A.L.R.4th 891.

32-03-14. Damages for breach of agreement to buy realty.

The detriment caused by the breach of an agreement to purchase an estate in real property is deemed to be the excess, if any, of the amount which would have been due to the seller under the contract over the value of the property.

Source:

Civ. C. 1877, § 1954; R.C. 1895, § 4984; R.C. 1899, § 4984; R.C. 1905, § 6569; C.L. 1913, § 7152; R.C. 1943, § 32-0314.

Derivation:

Cal. Civ. C., 3307.

Notes to Decisions

Ambiguous Earnest Money Clause.

Summary judgment in a real estate purchase dispute was error where the earnest money clause in the purchase agreement providing for liquidated damages “without prejudice of other rights and legal remedies” was ambiguous, requiring extrinsic evidence to determine the intentions of the parties. Dosland v. Netland, 424 N.W.2d 141, 1988 N.D. LEXIS 131 (N.D. 1988).

Measure of Damages.
—In General.

The measure of damages to the seller is the difference between the contract price and the salable or market value of the land at the time of the breach, after giving the vendee credit for any sums paid. Gerhardt v. Fleck, 256 N.W.2d 547, 1977 N.D. LEXIS 156 (N.D. 1977).

This section allows as damages the difference between the contract price and the salable or market value of the property at the time of the breach, after giving credit for any sums paid. Hagan v. Havnvik, 421 N.W.2d 56, 1988 N.D. LEXIS 72 (N.D. 1988).

—Alternative Measure Not Prohibited.

This section does not prohibit parties from establishing an alternative measure of liquidated damages for breach of contracts for the purchase of real estate. Fisher v. Schmeling, 520 N.W.2d 820, 1994 N.D. LEXIS 191 (N.D. 1994).

—-Excess.

District court did not err in entering a default judgment award which was different than that prayed for in the demand for judgment as N.D.C.C. § 32-03-14 allowed for damages for breach of an agreement to buy realty by determining the excess of the amount which would have been due to the seller under the contract over the value of the property, and N.D.R.Civ.P. 54(c) did not specify that the damages prayed for be in the seller’s complaint, but rather that it be included in the demand for judgment. Shull v. Walcker, 2009 ND 142, 770 N.W.2d 274, 2009 N.D. LEXIS 148 (N.D. 2009).

Collateral References.

Vendor and Purchaser 330.

77 Am. Jur. 2d, Vendor and Purchaser, §§ 441 et seq.

92 C.J.S. Vendor and Purchaser, § 636.

Provision in land contract for liquidated damages upon default of purchaser as affecting right of vendor to maintain action for damages for breach of contract, 39 A.L.R.5th 33.

32-03-15. Damages for breach of carrier’s obligation to accept freight, messages, or passengers.

The detriment caused by the breach of a carrier’s obligation to accept freight, messages, or passengers is deemed to be the difference between the amount which the carrier had a right to charge for the carriage and the amount it would be necessary to pay for the same service when it ought to be performed.

Source:

Civ. C. 1877, § 1962; R.C. 1895, § 4992; R.C. 1899, § 4992; R.C. 1905, § 6577; C.L. 1913, § 7160; R.C. 1943, § 32-0315.

Derivation:

Cal. Civ. C., 3315.

Collateral References.

Carriers 45, 236(2); Telecommunications 206, 277-279.

13 Am. Jur. 2d, Carriers, § 291; 74 Am. Jur. 2d, Telecommunications, §§ 54 et seq.

Preparation: right to recover, in action against carrier for breach of contract, expenditures incurred in preparation for performance, 17 A.L.R.2d 1300, 1365.

Extent of liability of carrier for deviation in transportation of property, 33 A.L.R.2d 145, 230.

Change of vehicles: duty and liability of carrier with respect to allowing passenger sufficient time for change of vehicles, 40 A.L.R.2d 809.

C.O.D.: liability of carrier for delivering goods sent C.O.D. without receiving cash payment, 27 A.L.R.3d 1320.

32-03-16. Damages for breach of carrier’s obligation to deliver freight.

The detriment caused by the breach of a carrier’s obligation to deliver freight, when the carrier has not converted it to the carrier’s own use, is deemed to be the value thereof at the place and on the day at which it should have been delivered, deducting the freightage to which the carrier would have been entitled if the carrier had completed the delivery.

Source:

Civ. C. 1877, § 1963; R.C. 1895, § 4993; R.C. 1899, § 4993; R.C. 1905, § 6578; C.L. 1913, § 7161; R.C. 1943, § 32-0316.

Derivation:

Cal. Civ. C., 3316.

Collateral References.

Carriers 135, 229.

14 Am. Jur. 2d, Carriers, §§ 481 et seq.

Market value: measure of damages for conversion or loss of, or damage to, personal property having no market value, 12 A.L.R.2d 902.

Unauthorized delivery, shipper’s ratification of carrier’s, 15 A.L.R.2d 807.

Preparation: right to recover, in action against carrier for breach of contract, expenditures incurred in preparation for performance, 17 A.L.R.2d 1300, 1365.

Contributory negligence as affecting railroad carrier’s liability for loss of baggage or effects accompanying passenger, 32 A.L.R.2d 630.

Insurance: coverage of policy insuring motor carrier against liability for loss of or damage to shipped property, 36 A.L.R.2d 506.

Improper loading, liability of carrier by land for damage to goods shipped resulting from, 44 A.L.R.2d 993.

Passenger’s baggage or packages, liability of carrier for loss of, 68 A.L.R.2d 1350.

Misdescription of goods by shipper as affecting carrier’s liability for loss or damage, 1 A.L.R.3d 736.

Improper packing by carrier, liability of carrier by land for damage to goods resulting from, 7 A.L.R.3d 723.

Nonagency station: validity and construction of stipulation exempting carrier from liability for loss or damage to property at nonagency station, 16 A.L.R.3d 1111.

Insurance against loss of or damage to shipment, construction and effect of provision in shipping contract or bill of lading that carrier shall have benefit of shipper’s, 27 A.L.R.3d 984.

C.O.D.: liability of carrier for delivering goods sent C.O.D. without receiving cash payment, 27 A.L.R.3d 1320.

32-03-17. Damages for carrier’s delay.

The detriment caused by a carrier’s delay in the delivery of freight is deemed to be the depreciation in the intrinsic value of the freight during the delay and also the depreciation, if any, in the market value thereof, otherwise than by reason of a depreciation in the intrinsic value, at the place where it ought to have been delivered between the day at which it ought to have been delivered and the day of its actual delivery.

Source:

Civ. C. 1877, § 1964; R.C. 1895, § 4994; R.C. 1899, § 4994; R.C. 1905, § 6579; C.L. 1913, § 7162; R.C. 1943, § 32-0317.

Derivation:

Cal. Civ. C., 3317.

Collateral References.

Carriers 105, 213, 229.

13 Am. Jur. 2d, Carriers, §§ 421 et seq.

Unauthorized delivery: shipper’s ratification of carrier’s unauthorized delivery, 15 A.L.R.2d 807.

Preparation: right to recover, in action against carrier for breach of contract, expenditures incurred in preparation for performance, 17 A.L.R.2d 1300, 1365.

Extent of liability of carrier for deviation in transportation of property, 33 A.L.R.2d 145, 230.

32-03-18. Damages for breach of warranty of agent’s authority.

The detriment caused by the breach of a warranty of an agent’s authority is deemed to be the amount which could have been recovered and collected from the agent’s principal if the warranty had been complied with and the reasonable expenses of legal proceedings taken in good faith to enforce the act of the agent against the agent’s principal.

Source:

Civ. C. 1877, § 1965; R.C. 1895, § 4995; R.C. 1899, § 4995; R.C. 1905, § 6580; C.L. 1913, § 7163; R.C. 1943, § 32-0318.

Derivation:

Cal. Civ. C., 3318.

Notes to Decisions

Breach of Agent’s Warranty.

One injured by the breach of an agent’s warranty of authority may recover damages as provided by the statute in the amount which could have been recovered and collected from the principal if the warranty had been complied with, and the reasonable expense of legal proceedings taken in good faith to enforce the act of the agent against his principal. Kennedy v. Stonehouse, 13 N.D. 232, 100 N.W. 258, 1904 N.D. LEXIS 35 (N.D. 1904).

32-03-19. Damages for breach of promise to marry. [Repealed]

Repealed by S.L. 1997, ch. 51, § 40.

32-03-20. Measure of damages for tort.

For the breach of an obligation not arising from contract, the measure of damages, except when otherwise expressly provided by law, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.

Source:

Civ. C. 1877, § 1967; R.C. 1895, § 4997; R.C. 1899, § 4997; R.C. 1905, § 6582; C.L. 1913, § 7165; R.C. 1943, § 32-0320.

Derivation:

Cal. Civ. C., 3333.

Notes to Decisions

Assault Committed with Malice.

Exemplary damages may be awarded for an assault where it is committed with malice, either actual or presumed, and malice authorizing such recovery may be presumed from the wanton and reckless manner in which the wrongful act was committed. Shoemaker v. Sonju, 15 N.D. 518, 108 N.W. 42, 1906 N.D. LEXIS 57 (N.D. 1906).

Breach of Obligation.

The measure of damages for breach of an obligation which does not arise out of a contract is an amount that will compensate for all detriment proximately caused. Wilson v. Northern Pac. Ry., 30 N.D. 456, 153 N.W. 429, 1915 N.D. LEXIS 153 (N.D. 1915).

Award of derivative damages based on an analysis by the minority limited partners’ expert witness who calculated the reasonable profits and distributions that could have been realized if the majority limited partners in two partnerships had not breached their fiduciary duties and dissolved the partnerships was not unreasonable and speculative. Red River Wings, Inc. v. Hoot, Inc., 2008 ND 117, 751 N.W.2d 206, 2008 N.D. LEXIS 118 (N.D. 2008).

Common-Law Rule.

The measure of damages in tort is the same as at common law. Needham v. H. S. Halverson & Co., 22 N.D. 594, 135 N.W. 203, 1912 N.D. LEXIS 59 (N.D. 1912).

Conversion.

In an action to recover for an alleged wrongful levy by defendant, as county sheriff, upon certain property upon which the plaintiff held a chattel mortgage, the measure of damage was the value of the property at the time of the levy, and a fair compensation to the mortgagee for the time and money properly expended in pursuit of the property. Keith v. Haggart, 33 N.W. 465, 4 Dakota 438, 1887 Dakota LEXIS 13 (Dakota 1887).

The measure of damages for the wrongful conversion of an executory contract for the sale of land, except when otherwise expressly provided, is the amount which will compensate the party injured for all detriment approximately caused thereby. McKindley v. Citizens State Bank, 36 N.D. 451, 161 N.W. 601, 1917 N.D. LEXIS 163 (N.D. 1917).

Exemplary damages may be awarded for conversion when the conduct of the wrongdoer has been oppressive, malicious, or fraudulent. Lamoreaux v. Randall, 53 N.D. 697, 208 N.W. 104, 1926 N.D. LEXIS 28 (N.D. 1926).

Delay in Transportation.

Where a passenger sustains damage by reason of misinformation as to trains given by carrier’s employees, the carrier is liable for the actual damages sustained by the passenger by reason of such misdirection. Weeks v. Great N. Ry., 43 N.D. 426, 175 N.W. 726, 1919 N.D. LEXIS 65 (N.D. 1919).

Future Earnings.

In an action for wrongful death, the trial court should have given the defendant’s offered instruction to reduce to present cash value the amount that decedent probably would have contributed to his family’s support in the future, but failure to give such instruction was not reversible error where the instructions did not preclude reduction to present value and where the verdict was reasonable as tested by the present value standard. Geier v. Tjaden, 74 N.W.2d 361, 1955 N.D. LEXIS 166 (N.D. 1955).

Since this section includes the concept of present compensation for loss of future earning power, defendant in personal injury action was not entitled to personal summary judgment on plaintiff’s prayer for damages arising out of loss of future profits from farming operation; even though compensable, the loss of future profits in a farming venture is usually so speculative that any evidence addressed to proving it will be subjected to harsh scrutiny and no verdict or finding of fact of loss of profit will be allowed to stand unless the proof is clear and unequivocal. Shelver v. Simonsen, 369 F. Supp. 4, 1973 U.S. Dist. LEXIS 10613 (D.N.D. 1973).

Growing Crops.

Where attachment was improvidently issued and the taking of plaintiffs’ property prevented the harvest of crop at the proper time so that the crop was damaged by the weather, the detriment was proximately caused by the act of wrongful attachment and deprivation of possession, even though at the time of attachment the creditor did not anticipate any such result. Kelly v. Stockgrowers Credit Corp., 66 N.D. 209, 263 N.W. 717, 1935 N.D. LEXIS 189 (N.D. 1935).

In tort action by farmer against herbicide manufacturer for damage to wheat caused by defective herbicide, farmer was not entitled to recover the costs of the herbicide, the costs of incorporating the herbicide into the soil, or the costs of planting the wheat as these items of expense did not flow from the injury caused by the defective herbicide, but preceded that injury, and constituted a restitution claim while the farmer had elected to proceed on a tort claim, and farmer could not recover the costs of discing the land, cultivating, applying the fertilizer, or the cost of the wheat seed as these costs were incurred as part of the normal farming operations without regard to the damage caused by the defective herbicide; measure of damages recoverable by the farmer was the value at maturity which the probable crop would have had except for the injury, less the value the injured crop actually had at maturity, and less any reduction in amount and value of labor and expense attributable to the reduced yield. Johnson v. Monsanto Co., 303 N.W.2d 86, 1981 N.D. LEXIS 233 (N.D. 1981).

Injury to Property.

The measure of damages for the total injury to ice in the plaintiff’s ice house by reason of the collapse of the building caused by the excavation on the defendant’s land was the market value of such ice at the time and place of the injury, with interest. Slattery v. Rhud, 23 N.D. 274, 136 N.W. 237, 1912 N.D. LEXIS 89 (N.D. 1912).

In an action to recover damages for injury to store building, plaintiff’s damages was the difference between the value of the building prior to the injury and its value afterwards, where there was no evidence as to the cost of repairs. Harke v. Ewald, 51 N.D. 828, 200 N.W. 1009, 1924 N.D. LEXIS 76 (N.D. 1924).

Where grocery store fell into excavation on adjoining lot, anticipated profits could be used as a measure of damages only if reasonably certain in character and the loss was the proximate result of a tort. Truscott v. Peterson, 78 N.D. 498, 50 N.W.2d 245, 1951 N.D. LEXIS 127 (N.D. 1951).

Where fixtures are wrongfully severed from realty of which they have become a part, the measure of damages is the value of the fixtures as they were in place as a part of the realty immediately preceding removal. Gussner v. Mandan Creamery & Produce Co., 78 N.D. 594, 51 N.W.2d 352, 1952 N.D. LEXIS 68 (N.D. 1952).

Where a stubble fire prevented use of a pasture for grazing cattle for a full year, the measure of damages for the negligent setting of such fire was the value of the use of the property to the plaintiff for the time he was deprived of such use. Schmeet v. Schumacher, 137 N.W.2d 789, 1965 N.D. LEXIS 113 (N.D. 1965).

Insanity Proceedings, Unwarranted Prosecution.

The unwarranted prosecution of an insanity proceeding is a legal wrong for which the party injured may be compensated. Pickles v. Anton, 49 N.D. 47, 189 N.W. 684, 1922 N.D. LEXIS 9 (N.D. 1922).

Jury Instructions.

In an action for damages for personal injuries arising from negligence of defendants, giving of an instruction on measure of damages which was almost a verbatim quote of this section was not error. Kuntz v. Stelmachuk, 136 N.W.2d 810, 1965 N.D. LEXIS 126 (N.D. 1965).

Jury instruction on damages for deceit was proper where the instruction was close to a verbatim expression of the statutory measure of damages set out in this section. Delzer v. United Bank, 1997 ND 3, 559 N.W.2d 531, 1997 N.D. LEXIS 9 (N.D. 1997).

Killing of Animal.

An owner may recover special damages for rearing a suckling colt due to the killing of the dam. McDonell v. Minneapolis, S. P. & S. S. M. Ry., 17 N.D. 606, 118 N.W. 819, 1908 N.D. LEXIS 91 (N.D. 1908).

Misrepresentation and Deceit.

In an action to recover damages for alleged deceit in the exchange of property for corporate stock, where plaintiff had affirmed the contract after discovering the deceit, the measure of damages, in the absence of a claim for special damages, was the difference in value between what was received or parted with, and what would have been received or parted with, had there been no fraudulent representation. Beare v. Wright, 14 N.D. 26, 103 N.W. 632, 1905 N.D. LEXIS 36 (N.D. 1905).

In an action for deceit in misrepresenting the value of land sold, the measure of damages, under section 1967 of the Civil Code of 1877, was the loss sustained by reason of the fraud. Glaspell v. Northern P. R. Co., 43 F. 900, 1890 U.S. App. LEXIS 1782 (C.C.D.N.D. 1890), rev'd, 144 U.S. 211, 12 S. Ct. 593, 36 L. Ed. 409, 1892 U.S. LEXIS 2073 (U.S. 1892).

Mitigation of Damages.

In an action to recover damages, plaintiff has a duty to minimize or mitigate his damages and is not entitled to recover for damages which could have been avoided by reasonable efforts under the existing circumstances. Johnson v. Monsanto Co., 303 N.W.2d 86, 1981 N.D. LEXIS 233 (N.D. 1981).

Personal Injuries.

A woman housekeeper with no income suing for injuries received in a collision, when the tort is admitted or proven, is entitled to reasonable compensation for loss of capacity to perform her duties as housekeeper and for physical injuries, pain, and suffering. Lake v. Neubauer, 87 N.W.2d 888, 1958 N.D. LEXIS 63 (N.D. 1958).

In an action for damages for personal injuries sustained as the result of an automobile accident, the evidence supported a finding that plaintiff was entitled to $57,000 general damages and the fact that plaintiff was a member of the armed forces did not mean that he could not recover the reasonable value of medical and hospital services rendered without charge by a government hospital. Gillis v. Farmers Union Oil Co., 186 F. Supp. 331, 1960 U.S. Dist. LEXIS 3433 (D.N.D. 1960).

Proximate Cause.

If two causes unite to produce an injury, one the negligent act or omission of a municipality and the other something for which neither the municipality nor the party injured was responsible, and if the injury could not have resulted except for the negligent act or omission of the municipality, such act or omission is the proximate cause of the injury. Ouverson v. Grafton, 5 N.D. 281, 65 N.W. 676, 1895 N.D. LEXIS 33 (N.D. 1895).

Where death was caused by a pulmonary embolism following injuries in a vehicular collision caused by defendant’s negligence, it was immaterial whether the embolism was caused directly by the injuries or resulted from surgery made necessary by the injuries, as in either event the chain of causation reaches back to the defendant’s negligence. Geier v. Tjaden, 74 N.W.2d 361, 1955 N.D. LEXIS 166 (N.D. 1955).

Special Damages.

In order to recover for special damages, such damages must be proved to a reasonable degree of certainty and must not be too remote. Johnson v. Monsanto Co., 303 N.W.2d 86, 1981 N.D. LEXIS 233 (N.D. 1981).

Trespass.

Only such damages may be recovered where a trespass is not willful as will compensate the injured party for all detriment proximately caused by such trespass. Peterson v. Conlan, 18 N.D. 205, 119 N.W. 367, 1909 N.D. LEXIS 3 (N.D. 1909).

Wrongful Death.

A substantial loss will be presumed in the wrongful death of a minor child, and pecuniary loss need not be established by proof in dollars and cents. Perleberg v. General Tire & Rubber Co., 221 N.W.2d 729, 1974 N.D. LEXIS 175 (N.D. 1974).

Collateral References.

Damages 95-116.

22 Am. Jur. 2d, Damages, §§ 119 et seq.

25 C.J.S. Damages, §§ 105-107, 122-164.

Overflow of land caused by artificial construction or obstruction, 5 A.L.R.2d 302.

Marriage of child, or probability of marriage, as affecting measure of recovery by parents in death action, 7 A.L.R.2d 1380.

Changes in cost of living or in purchasing power of money as affecting damages for personal injuries or death, 12 A.L.R.2d 611.

Market value: measure of damages for conversion or loss of, or damage to, personal property having no market value, 12 A.L.R.2d 902.

Death of infant, measure and elements of damages for personal injury resulting in, 14 A.L.R.2d 485.

Prospective damages: award of “present worth” of prospective losses in action to recover damages for personal injury resulting in death of infant, 14 A.L.R.2d 485.

Privacy, damages for invasion of right of, 14 A.L.R.2d 750, 57 A.L.R.3d 16.

Board or lodging furnished to injured person in connection with hospital or nursing care, effect on damages recoverable in personal injury action, 18 A.L.R.2d 659.

Social club or similar society, damages recoverable for expulsion from, 20 A.L.R.2d 344, 393.

Church or religious society, damages recoverable for suspension or expulsion from, 20 A.L.R.2d 421.

Corporate stock: measure of damages for refusal of corporation or its agent to register or effectuate transfer of stock, 22 A.L.R.2d 12.

Interference with employment, measure of damages for, 26 A.L.R.2d 1273.

Contract, damages for procuring breach of, 26 A.L.R.2d 1227.

Insurance application: measure of damages in tort action arising out of delay in passing upon application for insurance, 32 A.L.R.2d 487, 536.

Warehousemen: damages recoverable from warehousemen for negligence causing injury to, or destruction of, goods of a perishable nature, 32 A.L.R.2d 910.

Infants: what items of damages on account of personal injury to infant belong to him, and what to parent, 32 A.L.R.2d 1060.

Assistant: cost of hiring substitute or assistant during incapacity of injured party as item of damages in action for personal injury, 37 A.L.R.2d 364.

Attachment: recovery of value of use of property wrongfully attached, 45 A.L.R.2d 1221.

Conditional seller’s misconduct in connection with repossession and resale of property, damages for, 49 A.L.R.2d 15.

Pollution of stream, measure and elements of damages for, 49 A.L.R.2d 253, 267.

Annuity: cost of annuity as factor for consideration in fixing damages, 53 A.L.R.2d 1454.

Employment: damages recoverable by employer from third person tortiously killing or injuring employee, 57 A.L.R.2d 802, 812.

Trees and shrubbery, measure of damages for destruction of or injury to, 69 A.L.R.2d 1335.

Credit or financial condition of third person, measure of damages recoverable for fraud as to, 72 A.L.R.2d 943.

Airplane, measure of damages for destruction of or injury to, 73 A.L.R.2d 719.

Livestock: measure and elements of damages in action other than one against a carrier, 79 A.L.R.2d 677.

Commercial paper, measure of damages for conversion or loss of, 85 A.L.R.2d 1349.

Earth: measure of damages for wrongful removal of earth, sand, or gravel from land, 1 A.L.R.3d 801.

Motor vehicle damaged or destroyed, recovery for loss of use of, 18 A.L.R.3d 497.

False imprisonment or arrest or malicious prosecution, attorneys’ fees as element of damages in action for, 21 A.L.R.3d 1068.

Sterilization or birth control procedures, medical malpractice, and measure and elements of damages, in connection with, 27 A.L.R.3d 906.

Shock: right to recover damages in negligence for fear of injury to another, or shock or mental anguish at witnessing such injury, 29 A.L.R.3d 1337.

Corporate stock or certificate, measure of damages for conversion of, 31 A.L.R.3d 1286.

Discrimination: recovery of damages for emotional distress resulting from racial, ethnic, or religious abuse or discrimination, 40 A.L.R.3d 1290.

Business profits: profits of business as factor in determining loss of earnings or earning capacity in action for personal injury or death, 45 A.L.R.3d 345.

Measure of damages for destruction of or injury to fruit, nut, or other productive trees, 90 A.L.R.3d 800.

Measure of damages for injury to or destruction of shade or ornamental tree or shrub, 95 A.L.R.3d 508.

Liability for interference with invalid or unenforceable contract, 96 A.L.R.3d 1294.

Per diem or similar mathematical basis for fixing damages for pain and suffering, 3 A.L.R.4th 940.

Liability for interference with at will business relationship, 5 A.L.R.4th 9.

Liability for wrongful autopsy, 18 A.L.R.4th 858.

Effect of anticipated inflation on damages for future losses—modern cases, 21 A.L.R.4th 21.

Loss of enjoyment of life as a distinct element or factor in awarding damages for bodily injury, 34 A.L.R.4th 293.

Validity of state statute providing for periodic payment of future damages in medical malpractice action, 41 A.L.R.4th 275.

Validity and construction of statute or ordinance limiting the kinds or amount of actual damages recoverable in tort action against governmental unit, 43 A.L.R.4th 19.

Third-party tortfeasor’s right to have damages recovered by employee reduced by amount of employee’s workers’ compensation benefits, 43 A.L.R.4th 849.

Punitive damages for interference with contract or business relationship, 44 A.L.R.4th 1078.

Recovery of damages for grief or mental anguish resulting from death of child—modern cases, 45 A.L.R.4th 234.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in farming, ranching, or agricultural labor, 46 A.L.R.4th 220.

Recoverability from tortfeasor of cost of diagnostic examinations absent proof of actual bodily injury, 46 A.L.R.4th 1151.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of homemaker, 47 A.L.R.4th 100.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in trades and manual occupations, 47 A.L.R.4th 134.

Excessiveness or inadequacy of compensatory damages for false imprisonment or arrest, 48 A.L.R.4th 165.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of retired persons, 48 A.L.R.4th 229.

Excessiveness or inadequacy of compensatory damages for defamation, 49 A.L.R.4th 1158.

Future disease or condition or anxiety relating thereto, as element of recovery, 50 A.L.R.4th 13.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in professional, white-collar, and nonmanual occupations, 50 A.L.R.4th 787.

Excessiveness or inadequacy of compensatory damages for malicious prosecution, 50 A.L.R.4th 843.

Liability of employer, supervisor, or manager for intentionally or recklessly causing employee emotional distress, 52 A.L.R.4th 853.

Parent’s right to recover for loss of consortium in connection with injury to child, 54 A.L.R.4th 112.

Business interruption, without physical damage, as actionable, 65 A.L.R.4th 1126.

Measure and element of damages for pollution of well or spring, 76 A.L.R.4th 629.

Recovery of damages for loss of consortium resulting from death of child—modern status, 77 A.L.R.4th 411.

Measure and elements of damages recoverable for attorney’s negligence in preparing or conducting litigation — Twentieth Century cases, 90 A.L.R.4th 1033.

Fraud actions: right to recover for mental or emotional distress, 11 A.L.R.5th 88.

Damages for killing or injuring dog, 61 A.L.R.5th 635.

Nonuse of seatbelt as reducing amount of damages recoverable, 62 A.L.R.5th 537.

Validity of state statutory cap on punitive damages, 103 A.L.R.5th 379.

Exemplary or punitive damages for pharmacist’s wrongful conduct in preparing or dispensing medical prescription — Cases not under Consumer Product Safety Act (15 U.S.C.A. § 2072), 109 A.L.R.5th 397.

Liability of Property Owners to Persons Who Have Never Been on or Near Their Property for Exposure to Asbestos Carried Home on Household Member’s Clothing, 33 A.L.R.6th 325.

Law Reviews.

North Dakota Legal Malpractice: A Summary of the Law, 70 N.D. L. Rev. 615 (1994).

For Article: The Worth of a Human Life, see 85 N.D. L. Rev. 123 (2009).

North Dakota Supreme Court Review, (Red River Wings, Inc. v. Hoot, Inc., 2008 ND 117, 751 N.W.2d 206 (2008)), see 85 N. Dak. L. Rev. 503 (2009).

32-03-21. Damages for wrongful occupation of realty.

The detriment caused by the wrongful occupation of real property in cases not embraced in sections 32-03-22, 32-03-27, 32-03-28, and 32-03-29 is deemed to be the value of the use of the property for the time of such occupation, not exceeding six years next preceding the commencement of the action or proceeding to enforce the right to damages and the costs, if any, of recovering the possession.

Source:

Civ. C. 1877, § 1968; R.C. 1895, § 4998; R.C. 1899, § 4998; R.C. 1905, § 6583; C.L. 1913, § 7166; R.C. 1943, § 32-0321.

Derivation:

Cal. Civ. C., 3334.

Notes to Decisions

Assignment of Rents.

An assignment of rents by the owner of a life estate in real property which a county had entered and possessed under a tax deed, assigned no right or claim against the county. Sailer v. Mercer County, 75 N.D. 123, 26 N.W.2d 137, 1947 N.D. LEXIS 52 (N.D. 1947).

Delay in Sale of Real Property.

In action for breach of real estate contract based on seller’s delay in conveying the property, instructions on damages should have been based on this section, and not on N.D.C.C. §§ 32-03-09 or 32-03-13. Bumann v. Maurer, 203 N.W.2d 434, 1972 N.D. LEXIS 112 (N.D. 1972).

Right to Recover.

The relationship of landlord and tenant is not essential to a recovery of the value of the use and occupation of real property. Belakjon v. Hilstad, 76 N.D. 298, 35 N.W.2d 637, 1949 N.D. LEXIS 57 (N.D. 1949).

Defendant's use of plaintiff's property for disposal of off-lease saltwater was intentional and amounted to civil trespass because its use of property for that purpose went beyond its rights under lease. Injunction against further use of property for that purpose was appropriate, and plaintiff was entitled to statutory damages in same amount as would be appropriate if restitution principles were applied, but plaintiff was not entitled to punitive damages because it failed to prove that defendant acted with oppression, fraud, or actual malice. Raaum Estates v. Murex Petroleum Corp., 2017 U.S. Dist. LEXIS 103345 (D.N.D. July 5, 2017).

Collateral References.

Delay: compensation or damages awarded purchaser for delay in conveyance of land, 7 A.L.R.2d 1204.

Trespass: damages in action of trespass by tenant against stranger wrongfully interfering with his possession, 12 A.L.R.2d 1192, 1210.

Measure of damages for tenant’s failure to surrender possession of rented premises, 32 A.L.R.2d 582, 611.

Delay: measure of vendee’s recovery in action for damages for vendor’s delay in conveying real property, 74 A.L.R.2d 578.

Special or consequential damages recoverable, on account of delay in delivering possession, by purchaser of real property awarded specific performance, 11 A.L.R.4th 891.

32-03-22. Damages for willful detention of realty.

For willfully holding over real property by a person who entered upon the same as guardian or trustee for an infant or by right of an estate terminable with any life or lives after the termination of the trust or particular estate without the consent of the party immediately entitled after such termination, the measure of damages is the value of the profits received during such holding over.

Source:

Civ. C. 1877, § 1969; R.C. 1895, § 4999; R.C. 1899, § 4999; R.C. 1905, § 6584; C.L. 1913, § 7167; R.C. 1943, § 32-0322.

Derivation:

Cal. Civ. C., 3335.

32-03-23. Damages for conversion of personalty.

The detriment caused by the wrongful conversion of personal property is presumed to be:

  1. The value of the property at the time of the conversion, with the interest from that time; or
  2. When the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party; and
  3. A fair compensation for the time and money properly expended in pursuit of the property.

Source:

Civ. C. 1877, § 1970; S.L. 1885, ch. 42, § 1; R.C. 1895, § 5000; R.C. 1899, § 5000; R.C. 1905, § 6585; C.L. 1913, § 7168; R.C. 1943, § 32-0323.

Derivation:

Cal. Civ. C., 3336.

Note.

This section was first enacted by the Dakota Territory Legislative Assembly in 1866. The source of this enactment was the Field Civil Code.

Notes to Decisions

Alternative Remedies.

This section recognizes alternatives for one whose personal property is converted: (1) recovery of the value of the property with interest from the time of its conversion, or (2) recovery of the highest market value of the property at any time between the conversion and the verdict, but without interest. The injured party is given the benefit of any substantial appreciation in value after the conversion and before the verdict, but has the alternative option to collect interest. National Bank v. International Harvester Co., 421 N.W.2d 799, 1988 N.D. LEXIS 38 (N.D. 1988).

This section sets out alternative bases for valuing converted property: (1) The value of the property with interest from the time of its conversion, or (2) the highest market value of the property at any time between the conversion and the verdict, but without interest. Harwood State Bank v. Charon, 466 N.W.2d 601, 1991 N.D. LEXIS 25 (N.D. 1991).

In seeking damages for conversion, a property owner is required to first elect to utilize either N.D.C.C. § 32-03-23(1) or N.D.C.C. § 32-03-23(2) to establish the value of the property; if the owner elects a return of the converted property, the present value of that property must be considered in mitigation of damages established under subsection 1 or 2 of N.D.C.C. § 32-03-23, and the owner is also entitled to damages under N.D.C.C. § 32-03-23(3), which include a fair compensation for the time and money properly expended in pursuit of the property. Buri v. Ramsey, 2005 ND 65, 693 N.W.2d 619, 2005 N.D. LEXIS 71 (N.D. 2005).

Attorneys’ Fees.

The phrase “time and money properly expended in pursuit of the property” is not an express authorization for attorneys’ fees. Harwood State Bank v. Charon, 466 N.W.2d 601, 1991 N.D. LEXIS 25 (N.D. 1991).

Trust beneficiary who succeeded on a claim that a condominium was purchased with funds converted from the trust was entitled under N.D.C.C. § 32-03-23 to recover attorney’s fees and costs incurred in the pursuit of the converted property that had a demonstrable purpose independent of the litigation. Anderson v. Sullivan, 2007 U.S. Dist. LEXIS 58037 (D.N.D. Aug. 7, 2007).

Certificates of Deposit.

In an action for the conversion of certificates of deposit, protest for nonpayment prior to conversion was evidence of reduced value of the certificates. First Nat'l Bank v. Dickson, 40 N.W. 351, 5 Dakota 286, 1888 Dakota LEXIS 30 (Dakota 1888).

Conversion of Parts.

Where, pursuant to the terms of its dealership agreement, the sellers credited the dealers from whom parts were repossessed the current cost to dealers of each part returned, plus a five percent handling charge, the current price paid by dealers was relevant evidence of wholesale value. However, where the dealership agreement clearly provided that the five percent was for packaging the parts for return, not for freight expenses, and no other evidence suggested that freight expenses would equal five percent of the wholesale price, the trial court erred in including the five percent handling charge as part of the wholesale value of the parts in determining damages for conversion of those parts repurchased under the dealership agreement. National Bank v. International Harvester Co., 421 N.W.2d 799, 1988 N.D. LEXIS 38 (N.D. 1988).

Diligence in Commencing Action.

An unexplained delay of eleven months in commencing an action is not a prosecution with reasonable diligence, and the highest market value is not recoverable. First Nat'l Bank v. Minneapolis & N. Elevator Co., 8 N.D. 430, 79 N.W. 874, 1899 N.D. LEXIS 29 (N.D. 1899).

The question of reasonable diligence in commencing an action where the facts as to diligence are not in dispute is one of law. First Nat'l Bank v. Red River Valley Nat'l Bank, 9 N.D. 319, 83 N.W. 221, 1900 N.D. LEXIS 235 (N.D. 1900).

Where the time elapsing between the date of conversion and the time of making the demand and bringing the action was approximately five months, it could not be said that the plaintiff was not diligent in prosecuting her action. Auth v. Kuroki Elevator Co., 40 N.D. 533, 169 N.W. 80, 1918 N.D. LEXIS 99 (N.D. 1918).

Executory Contract for Sale of Land.

In action for conversion of executory contract for sale of land, the measure of damages is the amount which will compensate the party injured for all detriment proximately caused thereby. McKindley v. Citizens State Bank, 36 N.D. 451, 161 N.W. 601, 1917 N.D. LEXIS 163 (N.D. 1917).

Exemplary Damages.

Exemplary damages may be awarded for conversion when the conduct of the wrongdoer has been oppressive, malicious, or fraudulent. Lamoreaux v. Randall, 53 N.D. 697, 208 N.W. 104, 1926 N.D. LEXIS 28 (N.D. 1926).

Grain.

Refusal of elevator to deliver wheat to the plaintiff upon her proper demand therefor was prejudicial and wrongful, and operated as a conversion of the wheat, and would therefore entitle the plaintiff to recover the value of the grain on the date of such demand and refusal with interest. Towne v. St. Anthony & Dakota Elevator Co., 8 N.D. 200, 77 N.W. 608, 1898 N.D. LEXIS 38 (N.D. 1898).

In an action for conversion of grain, the plaintiff must show the value of the grain as of the date of conversion. Citizens Nat'l Bank v. Osborne-McMillan Elevator Co., 21 N.D. 335, 131 N.W. 266, 1911 N.D. LEXIS 115 (N.D. 1911).

In an action to recover value of grain raised by plaintiff under a cropper’s contract, the measure of damages was the highest market value of the grain between the date of the conversion and the verdict. Collard v. Fried, 41 N.D. 242, 170 N.W. 525, 1918 N.D. LEXIS 149 (N.D. 1918); Littler v. Halla, 46 N.D. 180, 180 N.W. 717, 1920 N.D. LEXIS 69 (N.D. 1920); Fargo Loan Agency v. Larson, 53 N.D. 621, 207 N.W. 1003, 1926 N.D. LEXIS 23 (N.D. 1926).

In an action to recover the value of grain alleged to have been converted by defendant, and upon which the plaintiff had a chattel mortgage, judgment was properly based upon the market value established; but the allowance of costs and expenses of the foreclosure sale was erroneous where mortgagee at no time had possession of the grain or the storage tickets representing it. Sand v. St. Anthony & D. Elevator Co., 49 N.D. 502, 191 N.W. 955, 1922 N.D. LEXIS 82 (N.D. 1922).

In an action for damages on account of the conversion of grain covered by a chattel mortgage owned by plaintiff, where defendant denied lien, the conversion dated from the time of the purchase of the grain contrary to the terms of the agreement, and it was sufficient to prove the value of the grain at that time as the measure of damages was that value to the extent of plaintiff’s lien with interest from such date. Rolette State Bank v. Minnekota Elevator Co., 50 N.D. 141, 195 N.W. 6, 1923 N.D. LEXIS 82 (N.D. 1923).

The owner of grain stored in a public warehouse may recover the value of the grain at the time and place of conversion less storage charges, plus freight charges from local market to terminal market. Huether v. McCaull-Dinsmore Co., 52 N.D. 721, 204 N.W. 614, 1925 N.D. LEXIS 137 (N.D. 1925), overruled in part, Sollin v. Wangler, 2001 ND 96, 627 N.W.2d 159, 2001 N.D. LEXIS 104 (N.D. 2001).

Where a bank prosecuted with reasonable diligence its action for conversion of stored grain, it was entitled to recover the highest market price between the time of the conversion and the verdict. First State Bank v. Osborne-McMillan Elevator Co., 53 N.D. 551, 207 N.W. 37, 1926 N.D. LEXIS 4 (N.D. 1926).

Conversion by a public warehouseman selling stored grain without substitution takes place as of the date of shipment and sale. State ex rel. Hermann v. Farmers' Elevator Co., 59 N.D. 679, 231 N.W. 725, 1930 N.D. LEXIS 185 (N.D. 1930).

A conversion of wheat occurs when the wheat is taken and sold by a third party. Nathan v. Sax Motor Co., 64 N.D. 773, 256 N.W. 228, 1934 N.D. LEXIS 266 (N.D. 1934).

Refusal to deliver grain stored in an elevator on the ground that the grain had been foreclosed on and sold for storage constituted conversion. Kvame v. Farmers Coop. Elevator Co., 66 N.D. 54, 262 N.W. 242, 1935 N.D. LEXIS 171 (N.D. 1935).

In action for conversion of wheat stolen from plaintiff and sold and delivered by the thieves to defendant elevator company, whose manager purchased the grain without knowing that it was stolen, damages were recoverable for value of the wheat at the date of sale by the thieves to the elevator company. Hovland v. Farmers Union Elevator Co., 67 N.D. 71, 269 N.W. 842, 1936 N.D. LEXIS 153 (N.D. 1936).

The district court abused its discretion in excluding the defendant’s evidence relating to the commingling of corn delivered to its elevator as this evidence was relevant to the issue of damages, in a conversion action by the holder of a security interest. Dakota Bank & Trust Co. v. Brakke, 404 N.W.2d 438, 1987 N.D. LEXIS 297 (N.D. 1987).

Where a land purchaser denied access to the owner of grain bins on the purchaser’s land, both the monetary value of grain bins and possession of the bins were not authorized under N.D.C.C. § 32-03-23, which provided alternative bases for valuing converted property; the owner of the grain bins had to elect a remedy and once possession was elected, the value of the returned property had to be applied in mitigation of damages. Buri v. Ramsey, 2005 ND 65, 693 N.W.2d 619, 2005 N.D. LEXIS 71 (N.D. 2005).

Illegal Levy.

The measure of damages for an illegal levy is the value of the property at the time, and fair compensation for the time and money expended in its pursuit. Keith v. Haggart, 33 N.W. 465, 4 Dakota 438, 1887 Dakota LEXIS 13 (Dakota 1887).

Manufacturer who had made a wrongful levy and sale of dealer’s inventory was answerable in damages for the value of the property as determined by any one of the three methods of this section. John Deere Co. v. Nygard Equip., 225 N.W.2d 80, 1974 N.D. LEXIS 152 (N.D. 1974).

Interest on Damage Award Mandatory.

District court erred by instructing the jury it could elect not to include interest in a credit corporation’s conversion award because, the corporation elected to receive damages under N.D.C.C. § 32-03-23(1) and should have been awarded interest in addition to the value of the tractor at the time of the conversion as the award of interest was mandatory. Case Credit Corp. v. Oppegard's, Inc., 2005 ND 141, 701 N.W.2d 891, 2005 N.D. LEXIS 174 (N.D. 2005).

Lien or Other Special Interest.

Where a second mortgagee sued sheriff to recover for conversion of mortgaged chattels, the first mortgagee having recovered what was due him on account of the conversion, the recovery of the second mortgagee was limited to the difference between the value of the chattels and the prior recovery where value was less than amount of the two mortgages. Straw v. Jenks, 43 N.W. 941, 6 Dakota 414, 1889 Dakota LEXIS 36 (Dakota 1889).

Where a party who has a lien on or other special interest in property wrongfully converts it, he is liable for the value of the property, but nevertheless, upon principles of equity and to avoid circuity of action, is entitled to recoup the value of the special property and immediately mitigate the damage by limiting the plaintiff’s recovery to an amount which will compensate him for the actual loss resulting from the conversion. Lovejoy v. Merchants' State Bank, 5 N.D. 623, 67 N.W. 956, 1896 N.D. LEXIS 56 (N.D. 1896).

Money Expended in Pursuit.

In a case in which the landowner converted the tenant’s property as it exercised dominion and control over the property, the district court did not err in awarding the tenant $17,000 in damages to compensate it for hiring an investigative service to assist in recovering its wrongfully detained property. Skaw ND Precast, LLC v. Oil Capital Ready Mix, LLC, 2019 ND 296, 936 N.W.2d 65, 2019 N.D. LEXIS 287 (N.D. 2019).

Sale of Corporate Stock.

The wrongful sale of corporate stock in which another had an interest rendered the seller liable for the conversion of that interest. Leach v. Kelsch, 106 N.W.2d 358, 1960 N.D. LEXIS 93 (N.D. 1960).

Special Damages.

Special damages upon conversion of property are allowed only when properly incurred in pursuit of the property. Aronson v. Oppegard, 16 N.D. 595, 114 N.W. 377, 1907 N.D. LEXIS 82 (N.D. 1907).

Where a party places a fence on the property of another who then tears it down and refuses to return the material, an action for conversion may not properly include the cost of the labor of building the fence. Frank v. Schaff, 123 N.W.2d 827, 1963 N.D. LEXIS 114 (N.D. 1963).

Removal jurisdiction was lacking and remand under 28 U.S.C.S. § 1447(c) was appropriate because defendant satellite television provider failed to present sufficient evidence to show that a fact finder could legally conclude that the damages in plaintiff consumer’s action were greater than the $75,000 amount-in-controversy requirement necessary to support diversity jurisdiction under 28 U.S.C.S. § 1332 as the maximum recoverable damages under North Dakota law for the consumer’s claims of conversion and consumer fraud would be in the range of $1,000 plus reasonable costs and attorney’s fees under N.D.C.C. § 32-03-23 and N.D.C.C. § 51-15-09. Laducer v. Dish Network Serv., L.L.C., 691 F. Supp. 2d 1042, 2010 U.S. Dist. LEXIS 27560 (D.N.D. 2010).

Statutory Rule.

The rule of damages for conversion of personal property is the highest market value thereof as prescribed by the statute. Thompson v. Schaetzel, 42 N.W. 765, 6 Dakota 284, 1889 Dakota LEXIS 18 (Dakota 1889); Pickert v. Rugg, 1 N.D. 230, 46 N.W. 446, 1890 N.D. LEXIS 28 (N.D. 1890).

Stock of Goods.

The measure of damages for the conversion of a stock of goods is the amount for which the stock could be sold in bulk or in convenient lots by a willing seller to a willing buyer. Mevorah v. Goodman, 60 N.W.2d 581, 1953 N.D. LEXIS 103 (N.D. 1953).

The appropriate measure of damages for conversion of a stock of goods is the wholesale price plus freight costs. National Bank v. International Harvester Co., 421 N.W.2d 799, 1988 N.D. LEXIS 38 (N.D. 1988).

Time Expended in Pursuit.

The clause “time spent in pursuit of the property” is common to the Dakota and California enactments and derives from the Field Civil Code. Harwood State Bank v. Charon, 466 N.W.2d 601, 1991 N.D. LEXIS 25 (N.D. 1991).

Verdict.

The word “verdict” in the statute providing that the measure of damages for conversion is the highest market value of the property at any time between the conversion and the verdict does not mean merely the decision of the jury, but also includes findings of a judge trying a case without a jury. KVAME v. FARMERS COOP. ELEVATOR CO., 68 N.D. 439, 281 N.W. 52, 1938 N.D. LEXIS 131 (N.D. 1938).

Collateral References.

Trover and Conversion 41-62.

18 Am. Jur. 2d, Conversion, §§ 116 et seq.

89 C.J.S. Trover and Conversion, §§ 115-144.

Market value: measure of damages for conversion or loss of, or damage to, personal property not having a market value, 12 A.L.R.2d 902.

Measure of damages for refusal of corporation or its agent to register or effectuate transfer of stock, 22 A.L.R.2d 12.

Conditional seller’s conversion of repossessed property, buyer’s damages for, 49 A.L.R.2d 15.

Punitive or exemplary damages for conversion of personalty by one other than chattel mortgagee or conditional seller, 54 A.L.R.2d 1361.

Timber, 69 A.L.R.2d 1335.

Commercial paper, measure of damages for conversion or loss of, 85 A.L.R.2d 1349.

Earth, sand, or gravel, measure of damages for wrongful removal, 1 A.L.R.3d 801.

Corporate stock or certificate, measure of damages for conversion of, 31 A.L.R.3d 1286.

Wearing apparel: valuation of wearing apparel or household goods kept by owner for personal use in action for loss, conversion, or injury to, such property, 34 A.L.R.3d 816.

Measure of damages for destruction of or injury to fruit, nut, or other productive trees, 90 A.L.R.3d 800.

Measure of damages for injury to or destruction of shade or ornamental tree or shrub, 95 A.L.R.3d 508.

Recognition of action for damages for wrongful foreclosure — Types of actions, 82 A.L.R.6th 43.

32-03-24. Presumption of damages cannot be repelled.

The presumption declared by section 32-03-23 cannot be repelled in favor of one whose possession was wrongful from the beginning by that person’s subsequent application of the property to the benefit of the owner without the owner’s consent.

Source:

Civ. C. 1877, § 1971; R.C. 1895, § 5001; R.C. 1899, § 5001; R.C. 1905, § 6586; C.L. 1913, § 7169; R.C. 1943, § 32-0324.

Derivation:

Cal. Civ. C., 3337.

32-03-25. Damages recoverable by lienholder.

One having a mere lien on personal property cannot recover greater damages for its conversion from one having a superior right thereto after the lien is discharged than the amount secured by the lien and the compensation allowed by section 32-03-23 for loss of time and expenses.

Source:

Civ. C. 1877, § 1972; R.C. 1895, § 5002; R.C. 1899, § 5002; R.C. 1905, § 6587; C.L. 1913, § 7170; R.C. 1943, § 32-0325.

Derivation:

Cal. Civ. C., 3338.

Notes to Decisions

Special Interest in Property.

The damages prescribed by the statute may be recovered by one having a special interest in the property. Second Nat'l Bank v. First Nat'l Bank, 8 N.D. 50, 76 N.W. 504, 1898 N.D. LEXIS 6 (N.D. 1898).

32-03-26. Damages for seduction. [Repealed]

Repealed by S.L. 1997, ch. 51, § 40.

32-03-27. Damages for tenant’s failure to surrender premises.

For the failure of a tenant to give up the premises held by the tenant, when the tenant has given notice of intention to do so, the measure of damages is double the rent which the tenant otherwise ought to pay.

Source:

Civ. C. 1877, § 1975; R.C. 1895, § 5005; R.C. 1899, § 5005; R.C. 1905, § 6590; C.L. 1913, § 7173; R.C. 1943, § 32-0327.

Derivation:

Cal. Civ. C., 3344.

Collateral References.

Landlord and Tenant 49(3), 144, 286.

49 Am. Jur. 2d, Landlord and Tenant, §§ 207 et seq.

28A C.J.S. Ejectment § 232; 52 C.J.S. Landlord and Tenant, §§ 495-498, 500-502; 52A C.J.S. Landlord and Tenant, §§ 12-714; 52B C.J.S. Landlord and Tenant, § 1359.

Failure to surrender possession of rented premises, 32 A.L.R.2d 582, 611.

What constitutes tenant’s holding over of leased premises, 13 A.L.R.5th 169.

Landlord’s permitting third party to occupy premises rent-free as acceptance of tenant’s surrender of premises, 18 A.L.R.5th 437.

32-03-28. Damages for tenant’s willful holding over.

For willfully holding over real property by a tenant, after the end of the term and after notice of intention to evict has been duly given and demand of possession made, the measure of damages is double the yearly value of the property for the time of withholding, in addition to compensation for the detriment occasioned thereby.

Source:

Civ. C. 1877, § 1976; R.C. 1895, § 5006; R.C. 1899, § 5006; R.C. 1905, § 6591; C.L. 1913, § 7174; R.C. 1943, § 32-0328; S.L. 1983, ch. 352, § 14.

Derivation:

Cal. Civ. C., 3345.

Collateral References.

What constitutes tenant’s holding over of leased premises, 13 A.L.R.5th 169.

Notes to Decisions

Hold Over Not Willful.

Evidence supported the district court's finding that a lessee did not willfully hold over because the correspondence exchanged between the lessor and the lessee created confusion as to what conditions the lessee was required to fulfil in exchange for a one-month extension; the lessee tendered two checks, believing it paid two months' rent, and the lessor applied the checks to the rent. Cheetah Props. 1, LLC v. Panther Pressure Testers, Inc., 2016 ND 102, 879 N.W.2d 423, 2016 N.D. LEXIS 98 (N.D. 2016).

Willful Holdover.

Tenant willfully holds over if the holding over is done so intentionally and not inadvertently. Cheetah Props. 1, LLC v. Panther Pressure Testers, Inc., 2016 ND 102, 879 N.W.2d 423, 2016 N.D. LEXIS 98 (N.D. 2016).

32-03-29. Damages for forcible exclusion from realty.

For forcibly ejecting or excluding a person from the possession of real property, the measure of damages is three times such a sum as would compensate for the detriment caused to the person by the act complained of.

Source:

Civ. C. 1877, § 1977; R.C. 1895, § 5007; R.C. 1899, § 5007; R.C. 1905, § 6592; C.L. 1913, § 7175; R.C. 1943, § 32-0329.

Notes to Decisions

Ejectment.

In a partnership dispute, a reviewing court did not have to address a trial court’s interpretation of agricultural land in N.D.C.C. § 47-16-02 because, even assuming there was a possessory interest in a bin site, there was evidence to support the finding that a partner was not ejected from the bin site. The testimony showed that a truck was parked across a road to prevent the removal of equipment, but not to prevent the use of the bins. Knudson v. Kyllo, 2012 ND 155, 819 N.W.2d 511, 2012 N.D. LEXIS 155 (N.D. 2012).

Forcible Entry.

To recover treble damages for a forcible ejectment from real property, the entry must have been forcible, but it is sufficient if present and threatened, and is justly to be feared, and it is not necessary that the force shall be actually applied. Wegner v. Lubenow, 12 N.D. 95, 95 N.W. 442, 1903 N.D. LEXIS 16 (N.D. 1903).

To authorize a recovery of treble damages under N.D.C.C. § 32-03-29 for a forcible ejectment from real property, it was necessary that the entry be forcible, but it was not necessary that the force be actually applied; it was enough if it was present and threatened, and was justly feared. Livinggood v. Balsdon, 2006 ND 11, 709 N.W.2d 723, 2006 N.D. LEXIS 17 (N.D. 2006).

Trial court did not err in concluding that a landlord forcibly ejected a tenant through overt acts where the landlord had twice driven in front of the tenant’s tractor, told him his farm lease was invalid, and threatened to call law enforcement; on both occasions, the tenant or his son stopped working and left the property. The tenant was properly awarded treble damages. Livinggood v. Balsdon, 2006 ND 215, 722 N.W.2d 716, 2006 N.D. LEXIS 217 (N.D. 2006).

Occupancy of House by Employee.

The rule that the occupancy of a house by an employee is incidental to the operation of a farm and ceases with the service on the farm is not abrogated by this section. Davis v. Long, 45 N.D. 581, 178 N.W. 936, 1920 N.D. LEXIS 164 (N.D. 1920).

Collateral References.

Ejectment 132; Forcible Entry and Detainer 30; Landlord and Tenant 132(3), 180(4, 5), 278, 292, 318(3).

25 Am. Jur. 2d, Ejectment, §§ 50-54; 49 Am. Jur. 2d, Landlord and Tenant, §§ 444-446.

28A C.J.S. Ejectment, § 232; 36A C.J.S. Forcible Entry and Detainer, §§ 75-77; 52 C.J.S. Landlord and Tenant, §§ 723-728; 52A C.J.S. Landlord and Tenant, §§ 976-981; 52B C.J.S. Landlord and Tenant, §§ 1328, 1398.

Remedy of tenant against stranger wrongfully interfering with his possession, 12 A.L.R.2d 1192, 1210.

Physical injury occasioned by wrongful eviction, recovery by tenant of damages for, 17 A.L.R.2d 936.

Possession: measure of damages for lessor’s breach of covenant to put lessee into possession, 88 A.L.R.2d 1024, 1032.

Law Reviews.

North Dakota Supreme Court Review (Livinggood v. Balsdon), 83 N.D. L. Rev. 1085 (2007).

32-03-30. Damages for wrongful injuries to timber.

For wrongful injuries to timber, trees, or underwood upon the land of another, or removal thereof, the measure of damages is three times such a sum as would compensate for the actual detriment, except when the trespass was casual and involuntary or committed under the belief that the land belonged to the trespasser, or when the wood was taken by the authority of highway officers for the purposes of a highway. In such a case the damages are a sum equal to the actual detriment.

Source:

Civ. C. 1877, § 1978; R.C. 1895, § 5008; R.C. 1899, § 5008; R.C. 1905, § 6593; C.L. 1913, § 7176; R.C. 1943, § 32-0330.

Derivation:

Cal. Civ. C., 3346.

Collateral References.

Trespass 52.

52 Am. Jur. 2d, Logs and Timber, §§ 104 et seq.

87 C.J.S. Trespass, §§ 154, 155.

Venue of action for the cutting, destruction, or damage of standing timber or trees, 65 A.L.R.2d 1268.

Measure of damages for destruction of or injury to trees and shrubbery, 69 A.L.R.2d 1335.

Measure of damages for destruction of or injury to fruit, nut, or other productive trees, 90 A.L.R.3d 800.

Measure of damages for injury to or destruction of shade or ornamental tree or shrub, 95 A.L.R.3d 508.

Notes to Decisions

Jury Instructions.

District court erred in excluding from the jury instructions that portion of the statute at issue which would have informed the jury that treble damages would be awarded except if a neighbor’s trespass was committed under the belief the land belonged to him because the exclusion required the jury to speculate why the factual finding was required and it could not be concluded that insuring the jury’s ignorance did not mislead or confuse the jury. Haider v. Moen, 2018 ND 174, 914 N.W.2d 520, 2018 N.D. LEXIS 164 (N.D. 2018).

32-03-31. What value of property to seller deemed to be.

In estimating damages, the value of property to a seller thereof is deemed to be the price which the seller could have obtained therefor in the market nearest to the place at which it should have been accepted by the buyer and at such time after the breach of the contract as would have sufficed with reasonable diligence for the seller to effect a resale.

Source:

Civ. C. 1877, § 1979; R.C. 1895, § 5009; R.C. 1899, § 5009; R.C. 1905, § 6594; C.L. 1913, § 7177; R.C. 1943, § 32-0331.

Derivation:

Cal. Civ. C., 3353.

Notes to Decisions

Application of Statute.

This statute prescribes the rule to be followed unless the vendor proceeds to enforce a lien under N.D.C.C. § 35-20-05. Stanford v. McGill, 6 N.D. 536, 72 N.W. 938, 1897 N.D. LEXIS 33 (N.D. 1897), overruled, Hart-Parr Co. v. Finley, 31 N.D. 130, 153 N.W. 137, 1915 N.D. LEXIS 159 (N.D. 1915); Minneapolis Threshing Mach. Co. v. McDonald, 10 N.D. 408, 87 N.W. 993, 1901 N.D. LEXIS 52 (N.D. 1901).

Collateral References.

Measure of damages for conversion or loss of, or damage to, personal property having no market value, 12 A.L.R.2d 902.

32-03-32. What value of property to buyer or owner deemed to be.

In estimating damages, except as provided by sections 32-03-33 and 32-03-34, the value of property to a buyer or owner thereof deprived of its possession is deemed to be the price at which the buyer or owner might have bought an equivalent thing in the market nearest to the place where the property ought to have been put into such person’s possession, and at such time after the breach of duty upon which that person’s right to damages is founded as would suffice with reasonable diligence for that person to make such a purchase.

Source:

Civ. C. 1877, § 1980; R.C. 1895, § 5010; R.C. 1899, § 5010; R.C. 1905, § 6595; C.L. 1913, § 7178; R.C. 1943, § 32-0332.

Derivation:

Cal. Civ. C., 3354.

Notes to Decisions

Application of Statute.

The section does not apply to property which has no market value. Patterson v. Plummer, 10 N.D. 95, 86 N.W. 111 (1901), distinguished, McKindley v. Citizens State Bank, 36 N.D. 451, 161 N.W. 601 (1917) and Elliott Sch. Dist. v. Gorder, 55 N.D. 823, 215 N.W. 281, 1927 N.D. LEXIS 162 (N.D. 1927).

Breach of Warranty.

The statute is not applicable to a case where delivery is made and damages result from a breach of warranty of fitness. Needham v. H. S. Halverson & Co., 22 N.D. 594, 135 N.W. 203, 1912 N.D. LEXIS 59 (N.D. 1912).

Common-Law Rule.

The statute embodies the common-law rule of full compensation without punishment. Pickert v. Rugg, 1 N.D. 230, 46 N.W. 446, 1890 N.D. LEXIS 28 (N.D. 1890).

Failure to Deliver Potatoes.

Where defendant in writing agreed to sell plaintiff a carload of potatoes at one dollar and ten cents a bushel f.o.b. Winnipeg, guaranteeing safe delivery at Grand Forks, the measure of damages for defendant’s failure to deliver was the value of the potatoes at Grand Forks over the amount which would have been due if the defendant had fulfilled the contract. O. J. Barnes Co. v. Sheggerud, 43 N.D. 279, 173 N.W. 950, 1919 N.D. LEXIS 13 (N.D. 1919).

Purchaser’s Measure of Damages.

Purchaser of land induced through fraud and deceit is limited to the difference between value with which he parted and the actual value of the land as his measure of damages. Nupen v. Pearce, 235 F. 497, 1916 U.S. App. LEXIS 2203 (8th Cir. N.D. 1916).

Refusal to Deliver Repairs.

A counterclaim for damages for refusal to deliver certain repairs for machinery ordered by the defendant from the plaintiff, where the order was accepted or agreed to be filled, did not state facts sufficient to entitle the defendant to substantial damages. Scully Steel & Iron Co. v. Hann, 18 N.D. 528, 123 N.W. 275, 1909 N.D. LEXIS 53 (N.D. 1909).

Collateral References.

Measure of damages for conversion or loss of, or damage to, personal property having no market value, 12 A.L.R.2d 902.

Necessity that buyer, relying on market value as measure of damages for seller’s breach of sale contract, show that goods in question were available for market at price shown, 20 A.L.R.2d 819.

32-03-33. When peculiar value to person deemed value.

When certain property has a peculiar value to a person recovering damages for deprivation thereof or injury thereto, that value may be deemed to be its value against one who had notice thereof before incurring a liability to damages in respect thereof or against a willful wrongdoer.

Source:

Civ. C. 1877, § 1981; R.C. 1895, § 5011; R.C. 1899, § 5011; R.C. 1905, § 6596; C.L. 1913, § 7179; R.C. 1943, § 32-0333.

Derivation:

Cal. Civ. C., 3355.

32-03-34. Value of title papers.

For the purpose of estimating damages, the value of an instrument in writing is presumed to be equal to that of the property to which it entitles its owner.

Source:

Civ. C. 1877, § 1982; R.C. 1895, § 5012; R.C. 1899, § 5012; R.C. 1905, § 6597; C.L. 1913, § 7180; R.C. 1943, § 32-0334.

Derivation:

Cal. Civ. C., 3356.

Notes to Decisions

Application of Statute.

This section does not apply to an executory contract for the sale of land. McKindley v. Citizens State Bank, 36 N.D. 451, 161 N.W. 601, 1917 N.D. LEXIS 163 (N.D. 1917).

Chose in Action.

A chose in action is worth what appears to be due upon it and, unless the presumption is rebutted by legal evidence, it is conclusive. Anderson v. First Nat'l Bank, 6 N.D. 497, 72 N.W. 916, 1897 N.D. LEXIS 28 (N.D. 1897), aff'd, 172 U.S. 573, 19 S. Ct. 284, 43 L. Ed. 558, 1899 U.S. LEXIS 1397 (U.S. 1899).

Federal Bonds.

Federal bonds are presumed to be worth par until the contrary is shown. Dakota Nat'l Bank v. Brodie, 46 N.D. 247, 176 N.W. 738, 1920 N.D. LEXIS 1 (N.D. 1920).

Note and Mortgage.

The legal presumption is that note and mortgage were worth the amount of principal and interest indicated on their face at the time of conversion, and that amount with interest to the trial is prima facie the measure of damages. Holt v. Van Eps, 46 N.W. 689, 1 Dakota 206, 1875 Dakota LEXIS 13 (Dakota 1875).

Stock Certificate.

To the extent that this section applies to a certificate of stock in a national bank, the presumptive value of the stock is its par or nominal value. Patterson v. Plummer, 10 N.D. 95, 86 N.W. 111 (1901), distinguished, McKindley v. Citizens State Bank, 36 N.D. 451, 161 N.W. 601 (1917) and Elliott Sch. Dist. v. Gorder, 55 N.D. 823, 215 N.W. 281, 1927 N.D. LEXIS 162 (N.D. 1927).

32-03-35. Damages prescribed by this chapter exclude exemplary damages.

The damages prescribed by this chapter are exclusive of exemplary damages and interest except when those are mentioned expressly.

Source:

Civ. C. 1877, § 1983; R.C. 1895, § 5013; R.C. 1899, § 5013; R.C. 1905, § 6598; C.L. 1913, § 7181; R.C. 1943, § 32-0335.

Derivation:

Cal. Civ. C., 3357.

Collateral References.

Excessiveness or inadequacy of punitive damages awarded in personal injury or death cases, 12 A.L.R.5th 195.

Exemplary or punitive damages for pharmacist’s wrongful conduct in preparing or dispensing medical prescription — Cases not under Consumer Product Safety Act (15 U.S.C.A. § 2072), 109 A.L.R.5th 397.

32-03-36. Recovery not more than gained by performance.

Notwithstanding the provisions of this chapter, no person can recover a greater amount in damages for the breach of an obligation than the person could have gained by the full performance thereof on both sides, except in the cases wherein exemplary damages or penal damages are authorized, and in the case specified in section 36-21-13.

Source:

Civ. C. 1877, § 1984; R.C. 1895, § 5014; R.C. 1899, § 5014; R.C. 1905, § 6599; C.L. 1913, § 7182; R.C. 1943, § 32-0336; S.L. 1999, ch. 50, § 51.

Derivation:

Cal. Civ. C., 3358.

Notes to Decisions

Anticipated Profits.

Where a plaintiff offers evidence estimating anticipated profits with reasonable certainty, they may be awarded. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).

Benefit of Bargain.

The law incorporates the notion that contract damages should give the nonbreaching party the benefit of the bargain by awarding a sum of money that will put that person in as good a position as if the contract had been performed. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).

Breach of Sales Contract.

Where, in an action for breach of a lease-purchase contract for oil well equipment, the court allowed the seller to retain the sums already paid by the buyer, awarded damages for reasonable value of use based upon the parties’ monthly payment amount, and allowed the seller to keep the equipment without accounting for the proceeds, its measure of damages may arguably have been appropriate if the contract had been a true lease, but was wholly inappropriate for a breach of a sales contract. Lindberg v. Williston Indus. Supply Corp., 411 N.W.2d 368, 1987 N.D. LEXIS 382 (N.D. 1987).

Buyer’s Default.

A seller cannot, upon the buyer’s default, retake the property without accounting for the proceeds and also recover the purchase price from the defaulting buyer. This would clearly constitute a double recovery. Lindberg v. Williston Indus. Supply Corp., 411 N.W.2d 368, 1987 N.D. LEXIS 382 (N.D. 1987).

Construction Contract.

Trial court’s award of damages to excavation company based on load count was not clearly erroneous where developer failed to perform an initial cross-sectioning of area to be excavated as required by the contract, thereby preventing a more accurate calculation. Wachter v. Gratech Co., 2000 ND 62, 608 N.W.2d 279, 2000 N.D. LEXIS 65 (N.D. 2000).

Contract for Service.

Where the contract is for service and the breach prevents the performance of that service, the value of the contract consists of two items: (1) The party’s reasonable expenditures toward performance, including costs paid, material wasted, and time and services spent on the contract, and (2) the anticipated profits. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).

Fraudulent Misrepresentations.

In an action to recover damages for false and fraudulent representations, the measure of the plaintiff’s recovery, in absence of a claim for special or exemplary damages, is the difference in value between what was received or parted with, as the case may be, and what would have been received or parted with had the representations been true. Beare v. Wright, 14 N.D. 26, 103 N.W. 632, 1905 N.D. LEXIS 36 (N.D. 1905).

Limit on Recovery.

For a breach of contract, the injured party is entitled to compensation for the loss suffered, but can recover no more than would have been gained by full performance. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).

Lost Profits.

A party is entitled to recover for the detriment caused by the defendant’s breach, including lost profits if they are reasonable and not speculative. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).

Modified Net Profit Approach.

The method used by the trial court to derive net profits (a “modified net profit” approach) was improper, because it did not restrict the expenses that were deductible from the contract price to those which would have been incurred but for the breach of the contract, i.e., those expenses plaintiff did not have to pay because the defendant kept him from doing the work. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).

Repair.

In an action by plaintiff seed processor against defendants, a contractor, an equipment supplier, and a performance bond surety, the surety and the contractor unsuccessfully argued that the special masters’ damage determination with regard to repair costs provided the processor with a more expensive and well-appointed facility than it contracted to receive; the costs prepared by the processor’s experts were an objective and reasonable statement of costs to remedy the deficiencies in the plant and attain completed performance at the guaranteed levels. AgGrow Oils, L.L.C. v. Nat'l Union Fire Ins. Co., 276 F. Supp. 2d 999, 2003 U.S. Dist. LEXIS 12076 (D.N.D. 2003), aff'd, 420 F.3d 751, 2005 U.S. App. LEXIS 18015 (8th Cir. N.D. 2005).

Unascertainable Damages.

The trial court did not err in awarding greater damages than would have been realized by full performance of the contract, where without a breach, the broker would have been entitled not only to its net sales commissions, but to other damages, extremely difficult or impracticable to ascertain, yet flowing from the breach, including loss of management fees, sales referrals, business contact with tenants, and goodwill. Coldwell Banker-First Realty v. Meide & Son, 422 N.W.2d 375, 1988 N.D. LEXIS 78 (N.D. 1988).

Collateral References.

Amount of appropriation as limitation on damages for breach of contract recoverable by one contracting with government agency, 40 A.L.R.4th 998.

Equipment leasing expense as element of construction contractor’s damages, 52 A.L.R.4th 712.

Recoverability of compensatory damages for mental anguish or emotional distress for breach of contract to lend money, 52 A.L.R.4th 826.

32-03-37. Damages must be reasonable.

Damages in all cases must be reasonable, and when an obligation of any kind appears to create a right to unconscionable and grossly oppressive damages contrary to substantial justice, no more than reasonable damages can be recovered.

Source:

Civ. C. 1877, § 1985; R.C. 1895, § 5015; R.C. 1899, § 5015; R.C. 1905, § 6600; C.L. 1913, § 7183; R.C. 1943, § 32-0337.

Derivation:

Cal. Civ. C., 3359.

Collateral References.

Damages 127.

25A C.J.S. Damages, §§ 384-385.

Third-party tortfeasor’s right to have damages recovered by employee reduced by amount of employee’s workers’ compensation benefits, 43 A.L.R.4th 849.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in farming, ranching, or agricultural labor, 46 A.L.R.4th 220.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of homeworker, 47 A.L.R.4th 100.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in trades and manual occupations, 47 A.L.R.4th 134.

Excessiveness or inadequacy of compensatory damages for false imprisonment or arrest, 48 A.L.R.4th 165.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of retired persons, 48 A.L.R.4th 229.

Excessiveness and adequacy of damages for personal injuries resulting in death of minor, 49 A.L.R.4th 1076.

Excessiveness or inadequacy of compensatory damages for defamation, 49 A.L.R.4th 1158.

Future disease or condition, or anxiety relating thereto, as element or recovery, 50 A.L.R.4th 13.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in professional white-collar, and nonmanual occupations, 50 A.L.R.4th 787.

Excessiveness or inadequacy of compensatory damages for malicious prosecution, 50 A.L.R.4th 843.

Equipment leasing expense as element of construction contractor’s damages, 52 A.L.R.4th 712.

32-03-38. Nominal damages.

When a breach of duty has caused no appreciable detriment to the party affected, the party may recover nominal damages.

Source:

Civ. C. 1877, § 1986; R.C. 1895, § 5016; R.C. 1899, § 5016; R.C. 1905, § 6601; C.L. 1913, § 7184; R.C. 1943, § 32-0338.

Derivation:

Cal. Civ. C., 3360.

Notes to Decisions

Breach of Contract.

A party is entitled to nominal damages for the breach of a contract though there is failure to prove actual damages. Raymond v. Edelbrock, 15 N.D. 231, 107 N.W. 194, 1906 N.D. LEXIS 34 (N.D. 1906).

Breach of Official Bond.

A complaint which alleges a breach of an official bond is good against demurrer, even though there is no express allegation of damages. Bowman County v. McIntyre, 52 N.D. 225, 202 N.W. 651, 1925 N.D. LEXIS 24 (N.D. 1925).

Instructions.

Refusal to give defendant’s requested instruction would have required jury to award nominal damages if it found that plaintiff carnally knew wife of defendant was not error since statute allows such damages but does not require that they be awarded. Wrangham v. Tebelius, 231 N.W.2d 753, 1975 N.D. LEXIS 178 (N.D. 1975).

No Damage Suffered.

The trial court’s finding that no damage ensued from the defendants’ “acts of deceit” or “attempts to defraud” required that the nominal damage award for those acts be reversed. Olson v. Fraase, 421 N.W.2d 820, 1988 N.D. LEXIS 89 (N.D. 1988).

Nominal Damages Reversed.

The trial court’s award of nominal damages of $2500 each for four separate acts which was then trebled, was reversed, for at least two reasons. First, the damages were not nominal; nominal damages are limited to one dollar. More significantly, however, no nominal damage award was allowable, where three of the four acts of the defendants for which nominal damages were awarded, were based upon the trial court’s findings that these acts were either an attempt to defraud or were acts of deceit. Olson v. Fraase, 421 N.W.2d 820, 1988 N.D. LEXIS 89 (N.D. 1988).

Collateral References.

Damages 8-14.

22 Am. Jur. 2d, Damages, §§ 8-23.

25 C.J.S. Damages, §§ 12-20.

Trespass: nominal damages as recoverable in action of trespass by tenant against stranger wrongfully interfering with his possession, 12 A.L.R.2d 1192, 1210.

Privacy, invasion of right of, 14 A.L.R.2d 750, 57 A.L.R.3d 16.

Corporation: right to nominal damages only for refusal of corporation or its agent to register or effectuate transfer of stock, 22 A.L.R.2d 12.

Breach of contract, nominal damages for procuring, 26 A.L.R.2d 1227.

Tenant’s failure to surrender possession of rented premises, nominal damages in action for, 32 A.L.R.2d 582, 611.

Pollution of stream, recovery of nominal damages only for, 49 A.L.R.2d 253, 267.

Employer’s right to damages for breach of employment contract by employee’s terminating employment, 61 A.L.R.2d 1008, 1010.

Geophysical or seismograph exploration or survey, right to nominal damages for unauthorized, 67 A.L.R.2d 444, 457.

Wrongful death action, recovery of nominal damages in, 69 A.L.R.2d 628.

Vendor’s delay in conveying real property, nominal damages in action by vendee for, 74 A.L.R.2d 585.

Commercial paper, nominal damages for conversion or loss of, 85 A.L.R.2d 1349.

Lessor’s breach of covenant to put lessee into possession, nominal damages for, 88 A.L.R.2d 1024, 1032.

Liability for interference with invalid or unenforceable contract, 96 A.L.R.3d 1294.

Sufficiency of showing of actual damages to support award of punitive damages — modern cases, 40 A.L.R.4th 11.

Punitive damages for interference with contract or business relationship, 44 A.L.R.4th 1078.

Measure and elements of damages recoverable for attorney’s negligence in preparing or conducting litigation — Twentieth Century cases, 90 A.L.R.4th 1033.

32-03-39. Parental responsibility for minor children — Recovery limitations.

Any municipal corporation, county, township, school district, or department of the state of North Dakota, or any person, partnership, corporation, limited liability company, association, or religious organization, whether incorporated or unincorporated, shall be entitled to recover damages in a civil action in an amount not to exceed one thousand dollars in a court of competent jurisdiction from the parents of any minor, living with a parent, who shall maliciously or willfully destroy property, real, personal, or mixed, belonging to such municipal corporation, county, township, school district, or department of the state of North Dakota, or person, partnership, corporation, limited liability company, association, or religious organization.

Recovery shall be limited to actual damages in an amount not to exceed one thousand dollars, in addition to taxable court costs.

Source:

S.L. 1957, ch. 224, §§ 1, 2; R.C. 1943, 1957 Supp., § 32-0339; S.L. 1973, ch. 120, § 34; 1975, ch. 293, § 1; 1993, ch. 54, § 106.

Cross-References.

Liability of minor jointly and severally with parents up to statutory amount, sole liability for damages over that amount, see N.D.C.C. § 32-03-09.2.

Collateral References.

Parent and Child 13(1).

59 Am. Jur. 2d, Parent and Child, § 103.

67A C.J.S. Parent and Child, § 309.

Validity and construction of statutes making parents liable for torts committed by their minor children, 8 A.L.R.3d 612.

Parent’s liability for injury or damage intentionally inflicted by minor child, 54 A.L.R.3d 974.

Infant’s liability for medical, dental or hospital services, 53 A.L.R.4th 1249.

Law Reviews.

Counterclaims and Third-Party Practice under the North Dakota Rules, 34 N.D. L. Rev. 7 (1958).

“The Development and Current Status of Parental Liability for the Torts of Minors,” 76 N.D. L. Rev. 89 (2000).

32-03-40. Emergency treatment by firemen, policemen, or peace officers.

Any fireman, policeman, or peace officer who in good faith renders emergency care at the scene of an emergency in this state shall be expected to render only such emergency care as in such person’s judgment is at the time indicated and shall not be liable for any civil damages for acts or omissions done in the person’s good-faith judgment except for damages occasioned by wanton acts of misconduct or negligence in rendering such emergency care.

Source:

S.L. 1967, ch. 267, § 1.

Cross-References.

Emergency care at scene of accident, see N.D.C.C. § 39-08-04.1.

Collateral References.

Construction of “Good Samaritan” statute excusing from civil liability one rendering care in an emergency, 39 A.L.R.3d 222.

Liability for failure of police response to emergency call, 39 A.L.R.4th 691.

Law Reviews.

For Case Comment: Health – Medical Malpractice Defenses: Applying Good Samaritan Laws to In-Hospital Emergencies (Chamley v. Khokha, 2007 ND 69, 730 N.W.2d 864), see 84 N.D. L. Rev. 535 (2008).

32-03-41. Immunity for mitigating hazardous materials discharge — Exceptions.

A person who assists or advises in mitigating or attempting to mitigate the effects of an actual or threatened discharge, leakage, seepage, or other release of materials or substances designated or defined as hazardous by any state or federal law or the rules and regulations of any state or federal entity, or in preventing, cleaning up, or disposing of or in attempting to prevent, clean up, or dispose of any such discharge, leakage, seepage, or other release is not subject to any civil liability or penalty. This section does not apply to damages caused by that person’s gross negligence or reckless, wanton, or intentional misconduct, nor does this section apply to any person whose act or omission caused the actual or threatened discharge, leakage, seepage, or other release and who would otherwise be liable therefor, or to any person who receives compensation other than reimbursement for out-of-pocket expenses for services in rendering such assistance or advice.

Source:

S.L. 1983, ch. 373, § 1.

Collateral References.

Validity of local regulation of hazardous waste, 67 A.L.R.4th 822.

State and local government control of pollution from underground storage tanks, 11 A.L.R.5th 388.

32-03-42. Limited liability for gratuitous health care provided amateur athletes.

Any person licensed to provide health care services in this state who in good faith voluntarily provides a health care service without compensation or the expectation of compensation for amateur athletes, or at an amateur athletic event, is not liable for any damages resulting from any act or omission in the rendering of that care, including the failure to arrange for further treatment or care. This section may not be construed to relieve the person of liability for injury or death of the person receiving the health care service proximately resulting from the intoxication, willful misconduct, or gross negligence of the person rendering the care.

Source:

S.L. 1985, ch. 371, § 1.

Law Reviews.

For Case Comment: Health – Medical Malpractice Defenses: Applying Good Samaritan Laws to In-Hospital Emergencies (Chamley v. Khokha, 2007 ND 69, 730 N.W.2d 864), see 84 N.D. L. Rev. 535 (2008).

32-03-43. Wrongful life action prohibited — Definition.

No person may maintain a claim for relief or receive an award for damages on that person’s own behalf based on the claim that, but for the act or omission of another, that person would have been aborted. As used in this section, “abortion” means the termination of human pregnancy with an intention other than to produce a live birth or to remove a dead embryo or fetus.

Source:

S.L. 1985, ch. 372, §§ 1, 2.

Notes to Decisions

Construction.

Summary judgment was properly awarded to doctors in parents’ action claiming that, as a result of the doctors’ negligence in detecting the presence of an abnormality consistent with Down Syndrome, they were deprived of their right to terminate a pregnancy because the plain language of the statute precluded a child or others from bringing a wrongful life claim on the child’s behalf. B.D.H. v. Mickelson, 2010 ND 235, 792 N.W.2d 169, 2010 N.D. LEXIS 238 (N.D. 2010).

Collateral References.

Recoverability of compensatory damages for mental anguish or emotional distress for tortiously causing another’s birth, 74 A.L.R.4th 798.

32-03-44. Immunity of officers, directors, and trustees of nonprofit organizations.

Any person who serves as a director, officer, or trustee of a nonprofit organization that is, or would qualify as a nonprofit organization that is, described in paragraphs 3, 4, 5, 6, 7, 10, and 19 of section 501(c) of the Internal Revenue Code of 1954 as amended [26 U.S.C. 501(c)(3), (4), (5), (6), (7), (10), and (19)], is immune from civil liability for any act or omission resulting in damage or injury if at the time of the act or omission all of the following are met:

  1. The officer, director, or trustee was acting in good faith and in the scope of that person’s official duties as a director, officer, or trustee of the nonprofit organization.
  2. The act or omission did not constitute willful misconduct or gross negligence on the part of the officer, director, or trustee.
  3. The officer, director, or trustee did not receive or expect to receive reimbursement for or payment of expenses in excess of two thousand dollars per year for expenses actually incurred as a result of providing services as a director, officer, or trustee of the nonprofit organization and did not receive or expect to receive compensation or anything in lieu of compensation as payment for services provided as a director, officer, or trustee of the nonprofit organization.

Source:

S.L. 1987, ch. 401, § 1.

Notes to Decisions

Evidence.

In an action to collect unpaid overtime wages from a non-profit organization, unsupported conclusory allegations, inadmissible hearsay and innuendo offered by the former employee were insufficient to establish personal liability of the corporation’s officers. Strom-Sell v. Council for Concerned Citizens, Inc., 1999 ND 132, 597 N.W.2d 414, 1999 N.D. LEXIS 152 (N.D. 1999).

32-03-45. Immunity of volunteers providing services for nonprofit organizations.

Except as provided in section 32-03-46, any person who, on a volunteer basis, provides services or performs duties on behalf of a nonprofit organization is immune from civil liability for any act or omission resulting in damage or injury if at the time of the act or omission all of the following are met:

  1. The person who caused the damage or injury was acting in good faith and in the scope of that person’s duties as a volunteer for the nonprofit organization.
  2. The act or omission did not constitute willful misconduct or gross negligence.

This section does not grant immunity to any person causing damage as the result of the negligent operation of a motor vehicle.

Source:

S.L. 1987, ch. 402, § 1; 1997, ch. 283, § 1.

32-03-46. Immunity of volunteer athletic coaches and officials.

  1. Any person who provides services or assistance free of charge, except for reimbursement of expenses, as an athletic coach, manager, or official for a sports team which is organized or performing pursuant to a nonprofit or similar charter is immune from civil liability for any act or omission resulting in damage or injury to a player or participant if at the time of the act or omission all the following are met:
    1. The person who caused the damage or injury was acting in good faith and in the scope of that person’s duties for the sports team.
    2. The act or omission did not constitute willful misconduct or gross negligence.
    3. The coach, manager, or official had participated in a safety orientation and training program established by the league or team with which the person is affiliated.
  2. This section does not grant immunity to:
    1. Any person causing damage as the result of the negligent operation of a motor vehicle.
    2. Any person for any damage caused by that person permitting a sports competition or practice to be conducted without supervision.
    3. Any athletic coach, manager, or official providing service as a part of a public or private educational institution’s athletic program.

Source:

S.L. 1987, ch. 402, § 2; 1997, ch. 283, § 2.

32-03-47. Definitions — Voluntary engineering services — Immunity.

  1. As used in this section:
    1. “Architect” means a person registered under chapter 43-03 as an architect.
    2. “Building inspection official” means any appointed or elected federal, state, or local official with overall executive responsibility to coordinate building inspection in the jurisdiction in which the emergency or event has occurred.
    3. “Law enforcement official” means any appointed or elected federal, state, or local official with overall executive responsibility to coordinate law enforcement in the jurisdiction in which the emergency or event has occurred.
    4. “Professional engineer” means a person licensed under chapter 43-19.1 as a professional engineer.
    5. “Public official” means any federal, state, or locally elected official with overall executive responsibility in the jurisdiction in which the emergency or event has occurred.
    6. “Public safety official” means any appointed or elected federal, state, or local official with overall executive responsibility to coordinate public safety in the jurisdiction in which the emergency or event has occurred.
  2. An architect or a professional engineer who voluntarily, without compensation, provides architectural or structural, electrical, mechanical, or other engineering services at the scene of a declared national, state, or local emergency caused by a major earthquake, hurricane, tornado, fire, explosion, collapse, or other similar disaster or catastrophic event at the request of a national, state, or local public official, law enforcement official, public safety official, or building inspection official acting in an official capacity, is not liable for any personal injury, wrongful death, property damage, or other loss caused by the architect’s or professional engineer’s acts, errors, or omissions in the performance of any engineering services for any structure, building, piping, or other engineered system, either publicly or privately owned.
  3. The immunity provided in this section applies only to a voluntary engineering service that occurs within ninety days of the emergency, disaster, or catastrophic event, unless extended by the governor under chapter 37-17.1.
  4. Nothing in this section provides immunity for wanton, willful, or intentional misconduct.

Source:

S.L. 1993, ch. 338, § 1.

32-03-48. Definitions. [Effective through August 31, 2022]

As used in sections 32-03-48 through 32-03-50, unless the context otherwise requires:

  1. “Critical incident” means any event encountered by emergency service personnel within the scope of their employment which causes them to experience unusually strong emotional reactions that have the potential to interfere with their ability to perform their jobs or that may interfere with their personal lives.
  2. “Critical incident stress debriefing” means the process of resolving the effects of critical incidents on emergency service personnel through a structured meeting with both psychological and educational components according to the model approved by the state department of health.
  3. “Critical incident stress management team” means those volunteers who are recognized by the state department of health as members of an organized group that provides critical incident stress debriefing services on behalf of the state.
  4. “Emergency service personnel” means individuals who provide emergency services to persons requiring medical aid, firefighting services, law enforcement assistance, or other emergency assistance. The term includes law enforcement officers, firefighters, rescue personnel, ambulance personnel, quick response personnel, emergency service dispatchers, nurses, physicians, and other emergency care providers.
  5. “Peer support personnel” means those members of a critical incident stress management team who are emergency service personnel and who have completed appropriate training approved by the state department of health.

Source:

S.L. 1995, ch. 326, § 1; 2017, ch. 97, § 25, eff August 1, 2017.

32-03-48. Definitions. [Effective September 1, 2022]

As used in sections 32-03-48 through 32-03-50, unless the context otherwise requires:

  1. “Critical incident” means any event encountered by emergency service personnel within the scope of their employment which causes them to experience unusually strong emotional reactions that have the potential to interfere with their ability to perform their jobs or that may interfere with their personal lives.
  2. “Critical incident stress debriefing” means the process of resolving the effects of critical incidents on emergency service personnel through a structured meeting with both psychological and educational components according to the model approved by the department of health and human services.
  3. “Critical incident stress management team” means those volunteers who are recognized by the department of health and human services as members of an organized group that provides critical incident stress debriefing services on behalf of the state.
  4. “Emergency service personnel” means individuals who provide emergency services to persons requiring medical aid, firefighting services, law enforcement assistance, or other emergency assistance. The term includes law enforcement officers, firefighters, rescue personnel, ambulance personnel, quick response personnel, emergency service dispatchers, nurses, physicians, and other emergency care providers.
  5. “Peer support personnel” means those members of a critical incident stress management team who are emergency service personnel and who have completed appropriate training approved by the department of health and human services.

Source:

S.L. 1995, ch. 326, § 1; 2017, ch. 97, § 25, eff August 1, 2017; 2021, ch. 352, § 341, eff September 1, 2022.

32-03-49. Immunity from liability.

Notwithstanding any other law, any member of a critical incident stress management team is immune from any civil liability for the member’s activities in connection with critical incident stress debriefing services unless, based upon the member’s level of training, the member’s activities constitute gross negligence.

Source:

S.L. 1995, ch. 326, § 2.

32-03-50. Confidentiality of critical incident stress management team proceedings and records.

Notwithstanding sections 44-04-18 and 44-04-19, all records and proceedings of a critical incident stress management team in connection with its critical incident stress debriefing activities are confidential. The records and proceedings are not subject to discovery or introduction into evidence in any action or proceeding involving the emergency service personnel in attendance at a debriefing and which arises out of the matters that are the subject of the debriefing. No person in attendance at a debriefing may be required to testify in any action or proceeding as to any evidence or other matters produced or presented during the debriefing. Information, documents, or records otherwise available from original sources are not immune from discovery because they were presented during a critical incident stress debriefing. Any person in attendance at a critical incident stress debriefing may testify as to matters within the person’s knowledge, but the person may not testify about the specific events that occurred at a debriefing.

Source:

S.L. 1995, ch. 326, § 3.

32-03-51. Limited liability of owner or operator of railroad.

An individual who is injured while boarding or attempting to board a moving locomotive or railroad car, without authority from the owner or operator of the railroad, or who having boarded a locomotive or railroad car without authority from the owner or operator of the railroad, is injured while riding or getting off the locomotive or railroad car, may not recover any damages from the owner or operator of the railroad for that injury unless the injury is proximately caused by an intentional act of the railroad owner or operator and the railroad owner or operator knew that serious injury was the probable result of the act, or that the owner or operator of the railroad acted with wanton and reckless disregard of the probable result of the act. This section does not exempt a railroad corporation from any liability created under chapter 49-16 or the federal Employer’s Liability Act [45 U.S.C. 51 et seq.] for injuries to its employees or agents.

Source:

S.L. 1997, ch. 284, § 1.

32-03-52. Damages for fraudulent use of social security number — Attorney’s fees.

  1. No person may buy or otherwise obtain or sell, offer for sale, take or give in exchange, pledge or give in pledge, or use any individual’s social security account number, or any derivative of the number, for the purpose of committing fraud or fraudulently using or assuming the individual’s identity.
  2. Any individual aggrieved by the act of any person in violation of subsection 1 may bring a claim for relief to recover any equitable relief as the court determines to be appropriate and the greater of the actual damages or liquidated damages of up to ten thousand dollars.
  3. In addition to any damages or other relief awarded under subsection 2, if the aggrieved individual prevails, the court may assess against the defendant reasonable attorney’s fees and any other litigation costs and expenses, including expert fees, reasonably incurred by the aggrieved individual.
  4. Any action brought under this section is in addition to any criminal prosecution that may be brought under any state or federal law.

Source:

S.L. 1999, ch. 299, § 1.

32-03-53. Damage or destruction of crops, livestock, or commodities — Damages.

  1. A person is liable for damages as provided in subsection 2 if that person willfully and knowingly damages or destroys any crop, livestock, or commodity which is being produced, or has been produced for:
    1. Personal or commercial purposes; or
    2. Testing or research purposes as part of a product development program in conjunction with or in coordination with a private research facility, a university, or any federal, state, or local government entity.
  2. In awarding damages under subsection 1, a court shall consider the market value of the crop, livestock, or commodity before the damage or destruction and the production, research, testing, replacement, and development costs directly related to the crop, livestock, or the commodity. A person found by the court to have been damaged under this section may recover reasonable attorney’s fees, exemplary damages, and twice the market value of the crop, livestock, or commodity before the damage or destruction and twice the actual production, research, testing, replacement, and development costs. Damages to crops, livestock, or commodities under this section which are reasonably necessary under a written contract or recorded easement duly entered into by the crop, livestock, or commodity producer are not recoverable.
  3. This section does not preclude or limit any other right or remedy available under law or equity.

Source:

S.L. 2001, ch. 303, § 1.

32-03-54. Limited liability — Firearms.

  1. In this section, a firearm is defined as in section 62.1-01-01.
  2. A firearm manufacturer, distributor, or seller who lawfully manufactures, distributes, or sells a firearm is not liable to any person or to the estate, a successor, or survivor of any person for any injury suffered, including wrongful death and property damage, because of the use of a firearm by another.
  3. An association of persons who are licensed under section 923 of title 18 of the United States Code, or amendments thereto, is not liable to any person or to the estate, a successor, or survivor of any person for any injury suffered, including wrongful death and property damage, because of the use of a firearm sold or manufactured by any licensee who is a member of the association.
  4. This section does not apply to a claim for relief for deceit, breach of contract, express or implied warranty, or for injury resulting from failure of a firearm to operate in a normal or usual manner due to defects or negligence in design or manufacture. This section does not apply to a claim for relief arising from the unlawful sale or transfer of a firearm or an instance when the transferor knew or should have known that the recipient would engage in the unlawful sale or transfer of the firearm or would use or purposely allow the use of the firearm in an unlawful, negligent, or improper fashion. For the purposes of this subsection, the potential of a firearm to cause serious injury, damage, or death as a result of normal function does not constitute a defective condition of the product. A firearm may not be deemed defective on the basis of its potential to cause serious injury, damage, or death when discharged.

Source:

S.L. 2001, ch. 304, § 1.

32-03-55. Immunity for report of suspected exploitation of disabled or vulnerable elderly adult.

A financial institution or financial institution employee participating in good faith in the making of a report of suspected exploitation of a disabled adult or vulnerable elderly adult to a government agency or law enforcement agency, assisting in an investigation of suspected exploitation of a disabled adult or vulnerable elderly adult by a government agency or law enforcement agency, or furnishing information to a government agency or law enforcement agency about suspected exploitation of a disabled adult or vulnerable elderly adult is immune from any liability, civil or criminal, that might otherwise result from reporting a suspected case of exploitation of a disabled adult or vulnerable elderly adult. For purposes of any proceeding, civil or criminal, the good faith of a financial institution making a report of suspected exploitation of a disabled adult or vulnerable elderly adult to a government agency or law enforcement agency must be presumed.

Source:

S.L. 2001, ch. 98, § 2.

32-03-56. Immunity for theft of anhydrous ammonia.

The owner of anhydrous ammonia is immune from civil liability for any loss, damage, or injury from the theft by another or attempted theft by another of anhydrous ammonia from the tank, equipment, or storage facility in which it is contained. For purposes of this section, “owner” means:

  1. A person who lawfully owns anhydrous ammonia;
  2. A person who lawfully owns a container, equipment, or storage facility containing anhydrous ammonia;
  3. A person responsible for the installation or operation of an anhydrous ammonia container, equipment, or storage facility;
  4. A person who lawfully sells anhydrous ammonia;
  5. A person who lawfully purchases anhydrous ammonia for agricultural purposes; and
  6. A person who operates or uses anhydrous ammonia containers, equipment, or storage facilities when lawfully applying anhydrous ammonia for agricultural purposes.

Source:

S.L. 2003, ch. 191, § 2.

32-03-57. Liquefied petroleum gas dealers immunity from civil liability.

  1. Any person engaged in this state in the business of selling at retail, supplying, handling, or transporting liquefied petroleum gas is immune from civil liability if the direct cause of any loss, damage, or injury was caused by the alteration, modification, or repair of liquefied petroleum gas equipment or a liquefied petroleum gas appliance if the alteration, modification, or repair was done without the knowledge and consent of the liquefied petroleum gas seller, supplier, handler, or transporter or was completed by a person not certified to repair the equipment or appliance.
  2. This section applies only to fixed liquefied petroleum gas fuel systems. “Fixed liquefied petroleum gas fuel system” means an installation with a maximum operating pressure of one hundred twenty-five pounds per square inch [861.84 kilopascal] or less and includes the container assembly, pressure regulator, piping system, gas utilization equipment and components, and venting system in residential, commercial, or institutional installations.

Source:

S.L. 2011, ch. 244, § 1.

Effective Date.

This section became effective August 1, 2011.

Note.

Section 2 of chapter 244, S.L. 2011 provides: “ APPLICATION. This Act applies to alleged injuries, damages, or losses occurring on or after August 1, 2011.”

32-03-58. Distribution of intimate images without or against consent — Remedies.

An individual whose intimate image is distributed in violation of section 12.1-17-07.2 may maintain a private right of action against each person who has distributed that image in violation of section 12.1-17-07.2, without regard to whether the defendant has been charged with, found guilty of, or pleaded guilty to that offense. An individual whose intimate image is distributed in violation of section 12.1-17-07.2 is entitled to pursue all of the economic, noneconomic, and exemplary or punitive damages and other remedies available by law and to obtain a temporary restraining order or a preliminary or permanent injunction ordering the person to cease distribution of the intimate image.

History. S.L. 2015, ch. 106, § 2, eff August 1, 2015.

Effective Date.

This section became effective August 1, 2015.

CHAPTER 32-03.1 Good Samaritan Act

32-03.1-01. Definitions.

For the purposes of this chapter, the following terms shall have the designated meanings:

  1. “Aid or assistance necessary or helpful in the circumstances” means any actions which the aider reasonably believed were required to prevent death or serious permanent injury, disability or handicap, or reasonably believed would benefit the injured or ill person, depending upon the aider’s perception of the nature and severity of the injury or illness and the total emergency situation, and that the aider reasonably believed the aider could successfully undertake.
  2. “Appropriate person licensed or certified by this state or by any state or province to provide medical care or assistance” means any physician, nurse, emergency medical technician, or other medical or paramedical personnel whom the aider reasonably believes is such, based upon the representations of the person or that person’s actions in providing medical aid.
  3. “Employed expressly or actually” means either that the person’s formal duties include the provision of emergency medical aid, or that the person customarily provides such aid and is informally expected or relied upon to do so in the course of the person’s employment.
  4. “Gross negligence” means acts or omissions falling short of intentional misconduct which nevertheless show a failure to exercise even slight care or any conscious interest in the predictable consequences of the acts or omissions. For the purposes of this chapter, “gross negligence” includes the failure of an aider to relinquish direction of the care of an injured or ill person when an appropriate person licensed or certified by this state or by any state or province to provide medical care or assistance assumes or attempts to assume responsibility for the care of the injured or ill person.

Source:

S.L. 1987, ch. 403, § 1.

Collateral References.

Construction and application of “Good Samaritan” statutes, 68 A.L.R.4th 294.

Duty of retail establishment, or its employees, to assist patron choking on food, 2 A.L.R.5th 966.

Law Reviews.

For Case Comment: Health – Medical Malpractice Defenses: Applying Good Samaritan Laws to In-Hospital Emergencies (Chamley v. Khokha, 2007 ND 69, 730 N.W.2d 864), see 84 N.D. L. Rev. 535 (2008).

32-03.1-02. Actions barred.

No person, or the person’s employer, subject to the exceptions in sections 32-03.1-03, 32-03.1-04, and 32-03.1-08, who renders aid or assistance necessary or helpful in the circumstances to other persons who have been injured or are ill as the result of an accident or illness, or any mechanical, external or organic trauma, may be named as a defendant or held liable in any personal injury civil action by any party in this state for acts or omissions arising out of a situation in which emergency aid or assistance is rendered, unless it is plainly alleged in the complaint and later proven that such person’s acts or omissions constituted intentional misconduct or gross negligence.

Source:

S.L. 1987, ch. 403, § 1.

Notes to Decisions

Rendering of Aid and Assistance.

The act of stopping at the scene of an accident and inquiring whether any assistance is needed can constitute the rendering of aid and assistance within the meaning of the Good Samaritan Act. McDowell v. Gillie, 2001 ND 91, 626 N.W.2d 666, 2001 N.D. LEXIS 107 (N.D. 2001).

Collateral References.

Construction and application of “Good Samaritan” statutes, 68 A.L.R.4th 294.

32-03.1-02.1. Emergency obstetrical services.

A physician licensed under chapter 43-17 who renders emergency obstetrical care or assistance to a pregnant female in active labor who has not previously been cared for in connection with the pregnancy by the physician or by another person professionally associated with the physician and whose medical records are not reasonably available to the physician is not liable in any personal injury civil action for acts or omissions resulting from the rendering of that emergency care or assistance, unless it is plainly alleged in the complaint and later proven that the physician’s acts or omissions constituted intentional misconduct or gross negligence. The immunity from civil liability provided by this section does not extend to a physician who renders emergency obstetrical care or assistance with an expectation of remuneration or who collects a fee for rendering that care or assistance.

Source:

S.L. 1989, ch. 409, § 1.

32-03.1-02.2. Immunity for a licensed health care provider who provides volunteer medical care at free clinics.

A health care provider licensed under title 43 who renders medical care on a voluntary basis at a free clinic is not liable in any personal injury civil action for acts or omissions resulting in the rendering of that care unless it is plainly alleged in the complaint and later proven that the health care provider’s acts or omissions constituted intentional misconduct or gross negligence. For purposes of this section, “voluntary” is defined as without receiving remuneration of any sort. “Free clinic” is defined as a clinic that is established to provide primary health care to persons who are otherwise unable to obtain medical services due to their lack of access to health insurance or medical assistance.

Source:

S.L. 1991, ch. 354, § 1.

32-03.1-02.3. Automated external defibrillators — Liability limited.

An individual who in good faith and without compensation provides training to use an automated external defibrillator, emergency care by using an automated external defibrillator, or emergency treatment by using an automated external defibrillator is immune from civil liability for any personal injury resulting from the training, emergency care, or emergency treatment and for any act or failure to act in providing or arranging further medical treatment if the individual providing the training, emergency care, or emergency treatment acted as an ordinary, reasonable, prudent person would act under the same or similar circumstances. This section does not apply if a personal injury results from the gross negligence or from the willful or wanton misconduct of the individual providing the training, emergency care, or emergency treatment. This section provides immunity to the person responsible for the site on which the automated external defibrillator is located. This section does not limit civil liability protection provided by any other law.

Source:

S.L. 1999, ch. 300, § 1; 2005, ch. 295, § 1; 2007, ch. 287, § 1; 2015, ch. 241, § 1, eff August 1, 2015; 2017, ch. 233, § 1, eff August 1, 2017.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 241, S.L. 2015 became effective August 1, 2015.

32-03.1-03. Criminal immunity.

No person who renders aid or assistance necessary or helpful in the circumstances to other persons who have been injured or are ill as the result of an accident or sudden illness or any mechanical, external, or organic trauma may be criminally charged in this state for having practiced medicine or nursing without a license, provided that the aider shall relinquish direction of the care of the injured person when an appropriate person licensed or certified by this state or by any state or province to provide medical care or assistance assumes responsibility for the care of the injured person.

Source:

S.L. 1987, ch. 403, § 1.

32-03.1-04. Fees or reimbursement for aid.

Nothing in this chapter may be construed to deprive any physician or surgeon licensed in this state of the right to collect reasonable fees for any acts of aid, assistance, or treatment or any other person rendering aid or assistance under this chapter, or those whose property is necessarily damaged in the course of such aid or assistance under this chapter, of the right to reimbursement, from the injured or ill person or that person’s estate for any expenses or damages which appeared reasonable and necessary to incur under the circumstances. Any person rendering aid or assistance with an expectation of remuneration shall not be covered by the provisions of this chapter.

Source:

S.L. 1987, ch. 403, § 1.

Law Reviews.

For Case Comment: Health – Medical Malpractice Defenses: Applying Good Samaritan Laws to In-Hospital Emergencies (Chamley V. Khokha, 2007 Nd 69, 730 N.W.2d 864), see 84 N.D. L. Rev. 535 (2008).

32-03.1-05. Exceptions.

This chapter does not encompass a person who, at the time of the emergency, was employed expressly or actually for the purpose of providing emergency medical aid to humans, either within or outside of a hospital or other place or vehicle with medical equipment, for emergency medical aid or other assistance rendered in the regular course of the person’s employment. Such persons and their employers are liable for their acts and omissions in rendering emergency medical aid in the regular course of their employment, according to the prevailing law in this state.

Source:

S.L. 1987, ch. 403, § 1; 2001, ch. 305, § 1.

32-03.1-06. Limited repealer.

This chapter supersedes any conflicting provision of law which is inconsistent with this chapter except sections 23-27-04.1, 32-03-40, 32-03-42, 39-08-04.1, 43-12.1-12, 43-17-37, and 43-17-38.

Source:

S.L. 1987, ch. 403, § 1; 1989, ch. 410, § 1; 1995, ch. 403, § 1.

32-03.1-07. Costs and fees.

Notwithstanding any other provision in the laws of this state, or any court rules, if a party names a defendant in a suit alleging intentional misconduct or gross negligence, as described in section 32-03.1-01, and the trial judge dismisses the complaint or grants a defendant’s motion for judgment on the pleadings, or directs a verdict for a defendant, or grants a defendant’s motion for judgment notwithstanding the verdict, or at any point in the proceedings grants a plaintiff’s motion to discontinue the action against the defendant, the defendant shall be entitled to full costs and reasonable attorney’s fees expended in connection with the defendant’s defense of the action. If good reason is shown, the trial judge may suspend the operation of this section.

Source:

S.L. 1987, ch. 403, § 1.

32-03.1-08. Actions not barred.

Nothing in this chapter may be construed to bar a civil action by any injured or ill person or injured or ill person’s survivors against any person for having tortiously caused an injury or emergency situation. Nothing in this chapter may be construed to relieve any person, tortiously causing an injury or emergency situation, from any affirmative duty to provide proper aid or assistance. If the defendant prevails in such an action, the defendant shall be entitled to costs and fees only as the other statutes and court rules of this state provide.

Source:

S.L. 1987, ch. 403, § 1.

CHAPTER 32-03.2 Fault, Damages, and Payments

32-03.2-01. Definition.

As used in this chapter, “fault” includes acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to tort liability or dram shop liability. The term also includes strict liability for product defect, breach of warranty, negligence or assumption of risk, misuse of a product for which the defendant otherwise would be liable, and failure to exercise reasonable care to avoid an injury or to mitigate damages. Legal requirements of causal relation apply both to fault as the basis for liability and to contributory fault.

Source:

S.L. 1987, ch. 404, § 1.

Note.

This chapter, which became effective July 8, 1987, applies to claims for relief which accrue after that date.

Section 1 of chapter 339, S.L. 1993, effective April 30, 1993, as well as section 5 of chapter 324, S.L. 1993, repealed section 15 of chapter 404, S.L. 1987, which had provided that this chapter would expire June 30, 1993.

Notes to Decisions

Applicability.

Trial court erred in granting judgment on an injured party’s dram shop claim. The injured party, who claimed that she was pushed to the ground by a bar patron, testified she saw the bar patron drinking beer at the bar earlier that night and noticed signs that would suggest that the bar patron was obviously intoxicated. Forsman v. Blues, Brews and Bar-B-Ques, Inc., 2012 ND 184, 820 N.W.2d 748, 2012 N.D. LEXIS 186 (N.D. 2012).

“Fault.”

This section indicates that the focus for determining tort liability has been shifted from traditional, doctrinal labels to the singular, inclusive concept of “fault.” Erickson v. Schwan, 453 N.W.2d 765, 1990 N.D. LEXIS 70 (N.D. 1990).

Intentional Acts.

There are many types of fault which the court must consider when comparing the fault of the parties. The court is not limited to simply comparing the negligence of both sides, but must consider all fault, including what would have traditionally been considered intentional torts or intentional conduct. Champagne v. United States, 836 F. Supp. 684, 1992 U.S. Dist. LEXIS 21977 (D.N.D. 1992), aff'd, 40 F.3d 946, 1994 U.S. App. LEXIS 32952 (8th Cir. N.D. 1994).

Prospective Application.

This chapter could not be retroactively applied to require the use of a combined fault assessment form in a case involving both negligence and strict liability claims which accrued before July 8, 1987. Butz v. Werner, 438 N.W.2d 509, 1989 N.D. LEXIS 61 (N.D. 1989).

DECISIONS UNDER PRIOR LAW

Contribution for Intentional Criminal Act.

This section addresses only negligence and does not authorize or require a diminution in the amount of damages awarded to an injured party by any amount that might be attributable to another person’s non-negligent, intentional, and criminal act. McLean v. Kirby Co., 490 N.W.2d 229, 1992 N.D. LEXIS 173 (N.D. 1992).

Defenses of Assumption of Risk and Contributory Negligence Abrogated.

Adoption of the doctrine of comparative negligence by the 1973 Legislature abrogated the affirmative defenses of assumption of risk and contributory negligence in North Dakota. Wentz v. Deseth, 221 N.W.2d 101, 1974 N.D. LEXIS 216 (N.D. 1974).

Determination of Contribution.

In determining the right of a tort-feasor to contribution in a comparative negligence action, the pro rata shares of the common liability are to be determined in proportion to the percentage of negligence attributable to each tort-feasor under this section. Butz v. Werner, 470 N.W.2d 224, 1991 N.D. LEXIS 96 (N.D. 1991).

Liability Where Partially at Fault.

A defendant may be held liable for a plaintiff’s total recoverable damages even when a jury finds that defendant only partially at fault. Hoerr v. Northfield Foundry & Mach. Co., 376 N.W.2d 323, 1985 N.D. LEXIS 459 (N.D. 1985).

In an action involving a negligent plaintiff and more than one negligent defendant, the plaintiff can recover from each of the defendants where the plaintiff’s share of the negligence is less than the sum of the shares of negligence apportioned to the negligent defendants. Beaudoin v. Texaco, Inc., 653 F. Supp. 512, 1987 U.S. Dist. LEXIS 1310 (D.N.D. 1987).

Where the jury found that plaintiff’s damages were proximately caused eighty percent by her own negligence, fifteen percent by defendant and five percent by a third parties’ negligence, plaintiff, under former section 9-10-07, was precluded from any award of damages. Garrett v. Nagel, 417 N.W.2d 855, 1988 N.D. App. LEXIS 2 (N.D. Ct. App. 1988).

Even if the borrower’s attorney was negligent in signing an opinion letter regarding liens on collateral without an investigation of liens, there was ample evidence in the record to support the trial judge’s conclusion that the lender was also negligent and that its negligence exceeded that of the attorney. Greyhound Leasing & Financial Corp. v. Norwest Bank of Jamestown, N.W., 854 F.2d 1122, 1988 U.S. App. LEXIS 11661 (8th Cir. N.D. 1988).

Loss of Consortium.

A wife’s claim for loss of consortium is an independent right, not contingent upon the rights or liabilities of her husband. Herold v. Burlington Northern, Inc., 761 F.2d 1241, 1985 U.S. App. LEXIS 31426 (8th Cir. N.D.), cert. denied, 474 U.S. 888, 106 S. Ct. 208, 88 L. Ed. 2d 177, 1985 U.S. LEXIS 3868 (U.S. 1985).

Momentary Forgetfulness Doctrine.

A plaintiff’s momentary forgetfulness of a known danger is something that trier of fact may consider in connection with all other circumstances involved in determining whether or not plaintiff and defendant were exercising reasonable care under circumstances, and, if not, in apportioning negligence of parties in allowing damages under former N.D.C.C. § 9-10-07; adoption of comparative negligence has not rendered a momentary forgetfulness instruction inapplicable. Keller v. Vermeer Mfg. Co., 360 N.W.2d 502, 1984 N.D. LEXIS 433 (N.D. 1984).

Negligent Entrustment Jury Instruction.

A jury given a negligent entrustment instruction should be further instructed that if there is negligent entrustment by the defendant, a foreseeable misuse of the chattel by the person to whom it is entrusted cannot be a superseding cause which will extinguish the defendants’ liability for harm caused by the misuse. First Trust Co. v. Scheels Hardware & Sports Shop, 429 N.W.2d 5, 1988 N.D. LEXIS 153 (N.D. 1988).

Passenger.

The negligence of a driver cannot be imputed to his passenger. Herold v. Burlington Northern, Inc., 761 F.2d 1241, 1985 U.S. App. LEXIS 31426 (8th Cir. N.D.), cert. denied, 474 U.S. 888, 106 S. Ct. 208, 88 L. Ed. 2d 177, 1985 U.S. LEXIS 3868 (U.S. 1985).

Personal Injury.

The trial court erred in giving the jury an assumption of risk instruction in a personal injury action; when the legislature adopted this section it omitted the language upon which the doctrine of assumption of risk was based, thereby abolishing the doctrine. First Trust Co. v. Scheels Hardware & Sports Shop, 429 N.W.2d 5, 1988 N.D. LEXIS 153 (N.D. 1988).

Where, in a personal injury action, evidence showed that a hardware dealer had sold a pistol to a 15-year-old boy who negligently shot the victim, failure to instruct the jury on a theory of negligent entrustment was reversible error. First Trust Co. v. Scheels Hardware & Sports Shop, 429 N.W.2d 5, 1988 N.D. LEXIS 153 (N.D. 1988).

Police Chase.

In an action for damages against law enforcement officers and their employers for the wrongful death of a passenger in a vehicle being pursued by the officers, who was killed when the vehicle rolled in the ditch after colliding with a pursuing State Highway Patrol vehicle, it was reversible error for the court to fail to attribute any percentage of fault to the driver of the vehicle. Jones v. Ahlberg, 489 N.W.2d 576, 1992 N.D. LEXIS 158 (N.D. 1992).

Purpose.

The comparative negligence statute was enacted to eliminate the inequities under the former contributory negligence act which denied a recovery if the plaintiff was contributorily negligent even as little as one percent. State by Workmen's Compensation Bureau v. Clary, 389 N.W.2d 347, 1986 N.D. LEXIS 327 (N.D. 1986).

Singular Becomes Plural.

In the absence of a plain meaning of this section’s text, N.D.C.C. § 1-01-35 becomes operative, and the term “person” in N.D.C.C. § 9-10-07 must be taken to include both the singular and the plural. Beaudoin v. Texaco, Inc., 653 F. Supp. 512, 1987 U.S. Dist. LEXIS 1310 (D.N.D. 1987).

Statutorily Immune Employers.

The “person against whom recovery is sought” under this section includes statutorily immune employers who were not made parties to the action. Beaudoin v. Texaco, Inc., 653 F. Supp. 512, 1987 U.S. Dist. LEXIS 1310 (D.N.D. 1987).

The operation of the joint and several liability provision of this section and the immunity provision of N.D.C.C. § 65-04-28 rendered the joint tortfeasor liable for the negligence of the immune employers, as well as its own negligence. Beaudoin v. Texaco, Inc., 653 F. Supp. 512, 1987 U.S. Dist. LEXIS 1310 (D.N.D. 1987).

Unreasonably Encountering a Known Risk.

Under comparative negligence law the jury, when it finds that the plaintiff has unreasonably encountered a known risk, must, as with any other contributory negligence of the plaintiff, compare that conduct with the negligence of the defendant and apportion the negligence accordingly. First Trust Co. v. Scheels Hardware & Sports Shop, 429 N.W.2d 5, 1988 N.D. LEXIS 153 (N.D. 1988).

Waiver.

Provision that joint tort-feasor shall remain jointly and severally liable for the whole award may be waived by the injured party. Bartels v. Williston, 276 N.W.2d 113, 1979 N.D. LEXIS 207 (N.D. 1979).

Collateral References.

Three people: comparative negligence rule where misconduct of three or more persons is involved, 8 A.L.R.3d 722.

Comment note on the doctrine of comparative negligence and its relation to the doctrine of contributory negligence, 32 A.L.R.3d 463.

Restrospective application of state statute substituting rule of comparative neligence for that of contributory negligence, 37 A.L.R.3d 1438.

Contribution or indemnity between joint tortfeasors on basis of relative fault, 53 A.L.R.3d 184.

Modern development of comparative negligence doctrine having applicability to negligence actions generally, 78 A.L.R.3d 339.

Liability for injury to martial arts participant, 47 A.L.R.4th 403.

Commercial renter’s negligence liability for customer’s personal injuries, 57 A.L.R.4th 1186.

Comparative fault: calculation of net recovery by applying percentage of plaintiff’s fault before or after subtracting amount of settlement by less than all joint tortfeasors, 71 A.L.R.4th 1108.

Rescue doctrine: applicability and application of comparative negligence principles, 75 A.L.R.4th 875.

Validity, construction, and effect of statute limiting amount recoverable in dram shop action, 78 A.L.R.4th 542.

Applicability of comparative negligence doctrine to actions based on negligent misrepresentation, 22 A.L.R.5th 464.

Comparative negligence of driver as defense to enhanced injury, crashworthiness, or second collision claim, 69 A.L.R.5th 625.

Comparative negligence, contributory negligence and assumption of risk in action against owner of store, office, or similar place of business by invitee falling on tracked-in water or snow, 83 A.L.R.5th 589.

Law Reviews.

Negligence — The Unit Rule and North Dakota’s Comparative Negligence Statute, 64 N.D. L. Rev. 135 (1988).

Automobiles: Vehicle Kept for Use of Family: The “Family Purpose” Doctrine — Just What Is Its Purpose in North Dakota? Schobinger v. Ivey, 467 N.W.2d 728 (1991), 68 N.D. L. Rev. 209 (1992).

32-03.2-02. Modified comparative fault.

Contributory fault does not bar recovery in an action by any person to recover damages for death or injury to person or property unless the fault was as great as the combined fault of all other persons who contribute to the injury, but any damages allowed must be diminished in proportion to the amount of contributing fault attributable to the person recovering. The court may, and when requested by any party, shall direct the jury to find separate special verdicts determining the amount of damages and the percentage of fault attributable to each person, whether or not a party, who contributed to the injury. The court shall then reduce the amount of such damages in proportion to the amount of fault attributable to the person recovering. When two or more parties are found to have contributed to the injury, the liability of each party is several only, and is not joint, and each party is liable only for the amount of damages attributable to the percentage of fault of that party, except that any persons who act in concert in committing a tortious act or aid or encourage the act, or ratifies or adopts the act for their benefit, are jointly liable for all damages attributable to their combined percentage of fault. Under this section, fault includes negligence, malpractice, absolute liability, dram shop liability, failure to warn, reckless or willful conduct, assumption of risk, misuse of product, failure to avoid injury, and product liability, including product liability involving negligence or strict liability or breach of warranty for product defect.

Source:

S.L. 1987, ch. 404, § 2; 1993, ch. 324, § 2.

Cross-References.

Railroad employee’s contributory negligence not bar to recovery from railroad, see N.D.C.C. § 49-16-03.

Notes to Decisions

Constitutionality.

The rational basis test was applicable to an equal protection challenge to this section. The elimination of joint and several liability under this section affects the amount of damages that an injured party may recover; however, that party is not denied access to the courts. Kavadas v. Lorenzen, 448 N.W.2d 219, 1989 N.D. LEXIS 214 (N.D. 1989).

The legislative classification in this section is rationally related to a legitimate legislative goal of the fixing responsibility for and paying of damages and, therefore, does not violate equal protection. Kavadas v. Lorenzen, 448 N.W.2d 219, 1989 N.D. LEXIS 214 (N.D. 1989).

This section bears a reasonable relation to the desired result of apportioning liability and damages among those persons responsible for another person’s injuries, is not arbitrary, unreasonable or discriminatory, and does not violate due process. Haff v. Hettich, 1999 ND 94, 593 N.W.2d 383, 1999 N.D. LEXIS 116 (N.D. 1999).

Consequential damages.

Evidence of a driver’s intoxication was not relevant under N.D. R. Evid. 402 where although the family members were allowed to recover pain, suffering, mental anguish, and emotional distress damages from their loved ones’ deaths, any damages due to the driver’s negligence preceding the deaths, including intoxication, were not compensable under N.D.C.C. §§ 32-21-02 or 32-03.2-02. Zander v. Morsette, 2021 ND 84, 959 N.W.2d 838, 2021 N.D. LEXIS 84 (N.D. 2021).

Acting “In Concert”.

University did not act in concert with 10K race sponsors who held race at university and thus was not jointly liable for any negligence attributable to the sponsors; there was no evidence that the university participated with the race sponsors in the planning and supervision of entrants running in the race and as a matter of law university hockey team player who became severely dehydrated while running in the race failed to show any common plan or design necessary for an “in concert” action. Reed v. University of North Dakota, 1999 ND 25, 589 N.W.2d 880, 1999 N.D. LEXIS 27 (N.D. 1999).

Plaintiff investors’ common law fraud claims failed because: (1) the conduct on which the fraud claim was based needed to be actionable fraud without the assistance of N.D.C.C. § 10-04-15; (2) N.D.C.C. § 32-03.2-02 did not create an independent basis of liability; (3) the investors presented no evidence that defendant attorney himself made any fraudulent statements and omissions, and (4) they failed to present any evidence to raise a genuine issue of material fact that there was a common plan to commit fraud or that the attorney knew that a seller of securities was making fraudulent statements and omitting material information in soliciting investors. Ward v. Bullis, 2008 ND 80, 748 N.W.2d 397, 2008 N.D. LEXIS 81 (N.D. 2008).

Applicability.
— In General.

In a breach of warranty action stemming from a construction contract, the district court properly refused to instruct on comparative fault; the modified comparative fault statute, N.D.C.C. § 32-03.2-02, did not apply where the cause of action arose out of a contract between the parties, and the damages sought were for the loss of the expected bargain only. Leno v. K & L Homes, Inc., 2011 ND 171, 803 N.W.2d 543, 2011 N.D. LEXIS 171 (N.D. 2011).

—Dram Shops.

The 1987 dram shop amendments to N.D.C.C. § 5-01-06.1 plainly granted persons injured by an obviously intoxicated person a dram shop claim for relief under the comparative fault guidelines against persons who knowingly sell alcoholic beverages to the intoxicated person while that person is obviously intoxicated; the amendments specifically incorporated the requirement of this section for allocation of fault among all persons “who contributed to the injury.” Stewart v. Ryan, 520 N.W.2d 39, 1994 N.D. LEXIS 169 (N.D. 1994).

Where dram shop claims were settled by patron allegedly injured in bar, if requested by any party, the court should provide separate interrogatories to the jury on defendant’s dram shop and common law fault, so that the jury would be free to assess separate percentages of fault for those claims. Zueger v. Carlson, 542 N.W.2d 92, 1996 N.D. LEXIS 21 (N.D. 1996).

Truck passengers riding with intoxicated minor driver were not liable under this section to passengers in another vehicle injured when truck struck that vehicle; truck passengers did not provide the driver with alcohol before or during the drive, did not encourage the driver to drink, and there was no evidence to show that the passengers knew the driver was intoxicated. Hurt v. Freeland, 1999 ND 12, 589 N.W.2d 551, 1999 N.D. LEXIS 4 (N.D. 1999).

Assumption of Risk.

This section includes not only negligence, but also assumption of risk within the definition of “fault” to be compared in an action for damages. Erickson v. Schwan, 453 N.W.2d 765, 1990 N.D. LEXIS 70 (N.D. 1990).

Collateral Estoppel.

Although the divorce court found a wife generally caused the husband's losses, the record did not reflect the divorce court assigned this exact fault. The wife's affirmative defense of comparative fault prevented collateral estoppel from establishing her liability for the husband's claims. Norberg v. Norberg, 2017 ND 14, 889 N.W.2d 889, 2017 N.D. LEXIS 29 (N.D. 2017).

Consequential Damages.

In a case decided under N.D.C.C. § 32-03.2-03 (now repealed), where a farmer delivered winter wheat to a grain elevator instead of the promised spring wheat, in awarding consequential damages, the trial court correctly compared the “fault” of the farmer and the elevator that caused those damages and apportioned them accordingly. Dakota Grain Co. v. Ehrmantrout, 502 N.W.2d 234, 1993 N.D. LEXIS 112 (N.D. 1993).

Contribution Among Tort-Feasors.

A tort-feasor who enters into a settlement with a claimant is not entitled to recover contribution from another tort-feasor whose liability for the injury or wrongful death is not extinguished by the settlement nor in respect to any amount paid in a settlement which is in excess of what was reasonable; therefore, because there was no evidence that the third party defendant’s liability was extinguished by the defendant’s settlement with the plaintiffs, the defendant was not entitled to maintain an action for contribution against the third party defendant. Pierce v. Shannon, 2000 ND 54, 607 N.W.2d 878, 2000 N.D. LEXIS 47 (N.D. 2000).

Because N.D.C.C. § 32-03.2-02 provided that a party was only liable for its own fault, an employer’s claim against a truck owner and driver for contribution was foreclosed; however, genuine issues of material fact existed concerning the employer’s crossclaim for indemnification. Campbell v. BNSF Ry. Co., 756 F. Supp. 2d 1109, 2010 U.S. Dist. LEXIS 138218 (D.N.D. 2010).

In an action brought by the surviving spouse of a deceased heavy construction equipment operator who was killed when a nine-wheel pneumatic rubber tire roller compactor he was operating rolled over, because the court denied summary judgment to the distributor and the seller on the spouse’s claims of strict products liability, failure to warn, and negligence, in accordance with N.D.C.C. § 32-03.2-02, the jury would be allowed to consider the “fault” of each party and assess whether the manner in which the decedent operated the compactor contributed to his injuries and damages would be diminished in proportion to the amount of contributing fault. Reiss v. Komatsu Am. Corp., 735 F. Supp. 2d 1125, 2010 U.S. Dist. LEXIS 85136 (D.N.D. 2010).

Phrase “legally entitled to collect” in N.D.C.C. § 26.1-40-15.3(1) was construed as defining the compensatory damages payable under underinsured coverage and contemplating an initial allocation for comparative fault under N.D.C.C. § 32-03.2-02, i.e., the scope of the damages underinsured coverage must pay was the compensatory damages attributable to the comparative fault of the owner or operator of the underinsured vehicle. Hiltner v. Owners Ins. Co., 2016 ND 45, 876 N.W.2d 460, 2016 N.D. LEXIS 45 (N.D. 2016).

Under the specific certified question, construing N.D.C.C. §§ 26.1-40-15.3(1) and 26.1-40-15.4(1)(b) together and in conjunction with comparative fault law, the federal district court should first reduce the past economic damages for the percentage of fault attributable to the underinsured insured, and other persons or parties, other than the operator or owner of the underinsured motor vehicle, and then deduct the no-fault benefits paid. Hiltner v. Owners Ins. Co., 2016 ND 45, 876 N.W.2d 460, 2016 N.D. LEXIS 45 (N.D. 2016).

Inherent Risks.

N.D.C.C. § 53-09-10, which bars recovery by a skier when an injury is caused by an inherent risk in skiing, does not conflict with the modified comparative fault statute found in this section. Bouchard v. Johnson, 555 N.W.2d 81, 1996 N.D. LEXIS 229 (N.D. 1996).

Intentional Acts.

There are many types of fault which the court must consider when comparing the fault of the parties. The court is not limited to simply comparing the negligence of both sides, but must consider all fault, including what would have traditionally been considered intentional torts or intentional conduct. Champagne v. United States, 836 F. Supp. 684, 1992 U.S. Dist. LEXIS 21977 (D.N.D. 1992), aff'd, 40 F.3d 946, 1994 U.S. App. LEXIS 32952 (8th Cir. N.D. 1994).

Even though an injury to the victim’s eye would not have occurred but for the shooter’s intentional act of pointing and firing an air gun at the victim, that act did not bar a jury from considering any alleged fault of other parties who contributed to the injury, specifically the manufacturer of the air gun. Symington v. Daisy Mfg. Co., 360 F. Supp. 2d 1027, 2005 U.S. Dist. LEXIS 4146 (D.N.D. 2005).

Because a jury’s findings that insureds acted in concert, as defined by N.D.C.C. § 32-03.2-02, when they wrongfully interfered with a business was res judicata as to whether their tortious conduct was intentional, their insurer had no duty to indemnify them. Coverage was precluded as a matter of law by intentional acts exclusions and by the public policy stated in N.D.C.C. §§ 9-08-02, 26.1-32-04; however, the jury’s findings did not relieve the insurer of the duty to defend, which was determined by the allegations in the underlying complaint. Tibert v. Nodak Mut. Ins. Co., 2012 ND 81, 816 N.W.2d 31, 2012 N.D. LEXIS 81 (N.D. 2012).

Joint and Several Liability.

Under this section, plaintiffs injured by two or more tortfeasors who do not act in concert in committing a tortious act or aid or encourage the act cannot recover under joint and several liability, while plaintiffs injured by two or more tortfeasors who act in concert in committing a tortious act or aid or encourage the act can recover under joint and several liability. Kavadas v. Lorenzen, 448 N.W.2d 219, 1989 N.D. LEXIS 214 (N.D. 1989).

Trial court did not err in awarding a plaintiff costs and disbursements from the defendants jointly and severally, even though the defendants were severally liable for plaintiff’s damages under this section. Kavadas v. Lorenzen, 448 N.W.2d 219, 1989 N.D. LEXIS 214 (N.D. 1989).

“Aid” for purposes of joint and several liability is not defined by N.D.C.C. § 32-03.2-02 and has not been defined by case law. Case Credit Corp. v. Oppegard's, Inc., 2005 ND 141, 701 N.W.2d 891, 2005 N.D. LEXIS 174 (N.D. 2005).

District court did not err in denying credit corporation’s motion for judgment as a matter of law that an implement dealer aided a farmer’s conversion and was therefore jointly liable for the corporation’s damages because the district judge found whether the dealer “aided” the farmer in converting the tractor was a question of fact to be decided by the fact finder and the jury specifically found the dealer did not aid the farmer, so the dealer was only severally liable for the corporation’s damages. Case Credit Corp. v. Oppegard's, Inc., 2005 ND 141, 701 N.W.2d 891, 2005 N.D. LEXIS 174 (N.D. 2005).

Jury Instructions.

Where defendant had full opportunity to present evidence to the jury about nonparty’s fault in suit for negligence in construction of home, the jury weighed the evidence and decided that the damage was due to defendant’s negligence, not nonparty’s, and thus decided the negligence of both; viewing the instructions as a whole, the instructions fairly and adequately advised the jury of the law, and the minor items argued by defendant did not necessitate reversal. Barnes v. Mitzel Builders, 526 N.W.2d 244, 1995 N.D. LEXIS 7 (N.D. 1995).

A trial court should give an ultimate-outcome instruction in a comparative fault case if it is properly requested and the court determines the instruction will not confuse or mislead the jury. Sollin v. Wangler, 2001 ND 96, 627 N.W.2d 159, 2001 N.D. LEXIS 104 (N.D. 2001).

The trial court’s failure to inform the jury, sua sponte, about the effect of its answers to comparative fault questions on its award of damages was not error of constitutional magnitude under N.D. Const. art. I, § 9, or fundamental error affecting substantial rights and requiring a new trial given that the plaintiff did not request an ultimate-outcome instruction before trial, did not object to the omission of the instruction before the jury deliberated, did not request the instruction when the jury submitted its question during deliberations, and at best, the issue of whether an ultimate-outcome instruction could be given in North Dakota was unsettled when the trial was held. Sollin v. Wangler, 2001 ND 96, 627 N.W.2d 159, 2001 N.D. LEXIS 104 (N.D. 2001).

District court did not err in failing to give a jury instruction defining “aid” as used N.D.C.C. § 32-03.2-02 because the word was commonly understood, the failure to give a definition was not prejudicial, and the district court’s decision not to define “aid” was not an abuse of its discretion. Case Credit Corp. v. Oppegard's, Inc., 2005 ND 141, 701 N.W.2d 891, 2005 N.D. LEXIS 174 (N.D. 2005).

District court did not confuse the jury by including the entire modified comparative fault statute in the instruction and not just the relevant parts because, although the instruction given could have been simplified by eliminating the extra statutory language, there was nothing to indicate the instruction was calculated to mislead the jury. Case Credit Corp. v. Oppegard's, Inc., 2005 ND 141, 701 N.W.2d 891, 2005 N.D. LEXIS 174 (N.D. 2005).

Trial court did not err by failing to give the independent contractor jury instruction, N.D. Pattern Jury Instructions Civ. C-55.25 as requested by the general contractor because the jury instructions, taken together as a whole, fairly advised the jury of the law on the essential issues in the case, including comparative fault. The general contractor had stipulated to try the case on the issue of comparative fault. Travelers Cas. Ins. Co. of Am. v. Williams Co. Constr., 2014 ND 160, 851 N.W.2d 164, 2014 N.D. LEXIS 170 (N.D. 2014).

Medical Expenses.

Because a father’s claim for past medical expenses derived from his son’s injuries, and the son was denied recovery under North Dakota’s modified comparative fault laws, the district court correctly dismissed the father’s claim for his son’s medical expenses. M.M. v. Fargo Public Sch. Dist. No. 1, 2012 ND 79, 815 N.W.2d 273, 2012 N.D. LEXIS 69 (N.D. 2012).

Parent is not entitled to recover medical expenses paid on behalf of an injured minor child whose comparative fault exceeds the fault of the tortfeasor. M.M. v. Fargo Public Sch. Dist. No. 1, 2012 ND 79, 815 N.W.2d 273, 2012 N.D. LEXIS 69 (N.D. 2012).

Medical Malpractice.

This section requires apportionment of damages based on the percentages of fault attributable to the original tortfeasor and medical care providers who negligently treated the original injury. Haff v. Hettich, 1999 ND 94, 593 N.W.2d 383, 1999 N.D. LEXIS 116 (N.D. 1999).

Multiple Defendants.

Under the comparative fault law in N.D.C.C. § 32-03.2-02, the driver’s alleged negligence did not necessarily negate the landowner’s duty to plaintiff under premises liability law. Saltsman v. Sharp, 2011 ND 172, 803 N.W.2d 553, 2011 N.D. LEXIS 172 (N.D. 2011).

Non-Sued Tort-Feasor.

A non-sued tort-feasor, who did not act in concert with, nor aid or encourage a sued tort-feasor, nor ratify or adopt that tort-feasor’s act, is not liable for contribution to the sued tort-feasor. Target Stores v. Automated Maintenance Servs., 492 N.W.2d 899, 1992 N.D. LEXIS 239 (N.D. 1992).

Purpose.

The legislature’s intent in enacting this section was to replace joint and several liability with several allocation of damages among those who commit torts in proportion to the fault of those who contributed to an injury. Hurt v. Freeland, 1999 ND 12, 589 N.W.2d 551, 1999 N.D. LEXIS 4 (N.D. 1999).

Question of Fact.

Where trial court found that plaintiff had violated this section, and had been driving his vehicle in a manner which would not enable him to stop within the “assured clear distance ahead”, there was a genuine issue of material fact as to whether plaintiff’s negligence was as great as the negligence of railroad, and court erred in granting summary judgment to railroad. Kiemele v. Soo Line R.R., 93 F.3d 472, 1996 U.S. App. LEXIS 20889 (8th Cir. N.D. 1996).

Settling with Some Defendants.

Where trial court found injury to be proximately caused by combination of overloaded cartridge and defectively designed gun in equal proportion, there was an irreconcilable inconsistency in the findings because judgment against nonsettling manufacturer was ordered for the total amount of plaintiff’s damages found by the court, and that manufacturer was entitled to have plaintiff’s total damages reduced by the portion of fault attributable to settling defendants. Endresen v. Scheels Hardware & Sports Shop, 1997 ND 38, 560 N.W.2d 225, 1997 N.D. LEXIS 39 (N.D. 1997).

In a wrongful death action the trial court did not err in refusing to reduce the jury’s damage award against the car driver by the amount of the plaintiffs’ settlement with the vicariously liable car owner. Nelson v. Johnson, 1999 ND 171, 599 N.W.2d 246, 1999 N.D. LEXIS 191 (N.D. 1999).

Suicide.

In an action against a hospital under the Federal Tort Claims Act (28 USCS 26, 71 et seq.) by personal representatives for the estate of a decedent who committed suicide, where plaintiffs established that the negligence of the hospital was a proximate cause of the decedent’s death, the decedent bore ultimate and primary responsibility for his own death, and his contributory negligence was attributed to those who brought suit on his behalf. Champagne v. United States, 836 F. Supp. 684, 1992 U.S. Dist. LEXIS 21977 (D.N.D. 1992), aff'd, 40 F.3d 946, 1994 U.S. App. LEXIS 32952 (8th Cir. N.D. 1994).

A suicide victim’s fault is considered under this section but if the medical provider, knowing the patient is suicidal and too mentally incapacitated to assume responsibility for his own well-being, undertakes a duty of care to the patient that takes in the patient’s duty of self-care, then the patient’s fault in the act of suicide is greatly reduced. If the patient’s act of suicide is a foreseeable result of the medical provider’s breach of duty to treat the patient, the patient’s act of suicide cannot be deemed a superseding cause of the patient’s death that breaks the chain of causation between the medical provider and the patient, which absolves the medical provider of liability. Champagne v. United States, 513 N.W.2d 75, 1994 N.D. LEXIS 62 (N.D. 1994).

The fault of a suicide victim is attributable to plaintiffs who sue for wrongful-death damages. Champagne v. United States, 513 N.W.2d 75, 1994 N.D. LEXIS 62 (N.D. 1994).

DECISIONS UNDER PRIOR LAW

Constitutionality.

Former N.D.C.C. § 9-10-07 did not create classifications constituting invidious discrimination in violation of the equal protection or due process rights of the federal or state constitutions. Mauch v. Mfrs. Sales & Serv., 345 N.W.2d 338, 1984 N.D. LEXIS 245 (N.D. 1984).

Contribution Among Tort-Feasors.

In determining the right of a tort-feasor to contribution in a comparative negligence action under former N.D.C.C. § 9-10-07, the pro rata shares of the common liability was determined in proportion to the percentage of negligence attributable to each tort-feasor under this section. Bartels v. Williston, 276 N.W.2d 113, 1979 N.D. LEXIS 207 (N.D. 1979).

Contributory Negligence.

Former N.D.C.C. § 9-10-07 did not abolish the concept of contributory negligence, it only abolished the former result of contributory negligence that a plaintiff’s contributory negligence barred recovery of any damages. The bar to recovery was, in essence, shifted from one percent to fifty percent. State by Workmen's Compensation Bureau v. Clary, 389 N.W.2d 347, 1986 N.D. LEXIS 327 (N.D. 1986).

Costs and Disbursements.

Plaintiff who recovers damages in a negligence action is entitled to recover costs and disbursements in an amount undiminished by percent of negligence attributable to him; former N.D.C.C. § 9-10-07 did not provide for any diminution in costs and disbursements allowed to a recovering plaintiff. Keller v. Vermeer Mfg. Co., 360 N.W.2d 502, 1984 N.D. LEXIS 433 (N.D. 1984).

Dramshop Actions.

Comparative negligence law does not apply to actions brought under the Dramshop Act. Feuerherm v. Ertelt, 286 N.W.2d 509, 1979 N.D. LEXIS 328 (N.D. 1979).

Release Given One of Two or More Persons Jointly Liable.

In a comparative negligence action under former N.D.C.C. § 9-10-07, when the plaintiff in good faith has given one of two or more persons liable in tort for his injury a general release, the fact finder shall determine the percentage of negligence attributable to the released tort-feasor as well as the percentage attributable to the remaining tort-feasors, and the damages shall be reduced by an amount proportionate to the percentage of negligence allocated to the released tort-feasor. Bartels v. Williston, 276 N.W.2d 113, 1979 N.D. LEXIS 207 (N.D. 1979).

In an action for negligence arising under former N.D.C.C. § 9-10-07, a general release given in good faith to one of two or more persons liable in tort for the same injury, pursuant to N.D.C.C. ch. 32-28, discharges the tort-feasor to whom it is given from all liability for contribution to any other tort-feasor. Bartels v. Williston, 276 N.W.2d 113, 1979 N.D. LEXIS 207 (N.D. 1979).

Review on Appeal.

Court’s finding of the apportionment of the negligence will not be set aside on appeal unless such finding is clearly erroneous. Bauer v. Graner, 266 N.W.2d 88, 1978 N.D. LEXIS 247 (N.D. 1978).

Settling with Some Defendants.

By settling with some tortfeasors in a negligence action, a plaintiff expects to have his or her recovery reduced only by that portion of causal fault attributable to the settling defendants. The plaintiff does not impliedly agree, or expect as a natural consequence of entering into a settlement, that he or she will be forced to absorb portions of causal fault attributable to nonsettling tortfeasors who are either insolvent or statutorily immune from suit. Hoerr v. Northfield Foundry & Mach. Co., 376 N.W.2d 323, 1985 N.D. LEXIS 459 (N.D. 1985).

By settling with some tortfeasors in a negligence action, the plaintiff waives joint and several liability only between the settling and nonsettling defendants, and the nonsettling defendants may be held jointly and severally liable for the entire portion of causal fault reduced only by that portion of fault attributable to the settling defendants. Hoerr v. Northfield Foundry & Mach. Co., 376 N.W.2d 323, 1985 N.D. LEXIS 459 (N.D. 1985).

To redistribute a statutorily immune employer’s percentage of fault in a negligence action between all causal parties, where a settlement with some of those parties had already been made, so as to reduce plaintiff’s recovery is contrary to the joint and several liability provisions of this section. Hoerr v. Northfield Foundry & Mach. Co., 376 N.W.2d 323, 1985 N.D. LEXIS 459 (N.D. 1985).

Workers’ Compensation Act.

The comparative negligence statute has not impliedly amended N.D.C.C. § 65-01-09. State by Workmen's Compensation Bureau v. Clary, 389 N.W.2d 347, 1986 N.D. LEXIS 327 (N.D. 1986).

Where employee was injured in a work-related accident resulting from the negligence of his employer, who was 75 percent negligent, and a third party, who was 25 percent negligent, and the employee received workers’ compensation benefits for his injuries and filed an action against the third party in accordance with N.D.C.C. § 65-01-09, the trial court erred in reducing employee’s damage recovery against the third party by the percentage of negligence attributable to the employer, who was immune from suit because of the workers’ compensation exclusive remedy provision; such reduction of damage recovery was contrary to the express language of former N.D.C.C. § 9-10-07, which retains the doctrine of joint and several liability, permitting the employee to recover his damages in full from the third party. Layman v. Braunschweigische Maschinenbauanstalt, Inc., 343 N.W.2d 334, 1983 N.D. LEXIS 434 (N.D. 1983).

The Workers’ Compensation Act operates in North Dakota to foreclose an employer’s liability for contribution to a third-party tort-feasor. Hoerr v. Northfield Foundry & Mach. Co., 376 N.W.2d 323, 1985 N.D. LEXIS 459 (N.D. 1985).

Neither this section nor N.D.C.C. § 65-01-09 permits a reduction of the workers’ compensation bureau’s subrogation rights because the claimant is unable to recover his full damages from all tort-feasors. Kavadas v. North Dakota Workers Compensation Bureau, 466 N.W.2d 839, 1991 N.D. App. LEXIS 4 (N.D. Ct. App. 1991).

Collateral References.

Intentional provocation, contributory or comparative negligence, or assumption of risk as defense to action for injury by dog, 11 A.L.R.5th 127.

Applicability of comparative negligence principles to intentional torts, 18 A.L.R.5th 525.

Comparative negligence of driver as defense to enhanced injury, crashworthiness, or second collision claim, 69 A.L.R.5th 625.

Law Reviews.

Comparative Negligence — North Dakota, 51 N.D. L. Rev. 745 (1975).

The North Dakota Equity for Tortfeasors Struggle — Judicial Action vs. Legislative Over-Reaction, 56 N.D. L. Rev. 67 (1980).

Merging Comparative Fault with Strict Liability Actions in North Dakota: In Search of a New Day, 61 N.D. L. Rev. 7 (1985).

Negligence-Damages-Expert Testimony on Plaintiff Motorcyclist’s Nonuse of a Helmet is Admissible Evidence on Issue of Damages, 60 N.D. L. Rev. 751 (1984).

Negligence — The Unit Rule and North Dakota’s Comparative Negligence Statute, 64 N.D. L. Rev. 135 (1988).

Intoxicating Liquors — Persons Liable: North Dakota Extends Statutory Dram Shop Liability to Social Hosts, 71 N.D. L. Rev. 743 (1995).

Constitutional Law — Workers Compensation: Equal Protection Challenge to the Agriculture Exemption and Use of Rational Basis Scrutiny in, Haney v. North Dakota Workers Compensation Bureau, 518 N.W.2d 195 (N.D. 1994), 71 N.D. L. Rev. 781 (1995).

Summary of North Dakota Supreme Court Decisions on Torts — Negligence, 71 N.D. L. Rev. 892 (1995).

Contracts v. Torts: North Dakota’s Aftermarket Risk Contract & Aftermarket Risk Insurance, Products Liability, and the General Aviation Industry, 72 N.D. L. Rev. 663 (1996).

North Dakota Supreme Court Review, 78 N.D. L. Rev. 579 (2002).

Note: North Dakota’s Seat Belt Defense: It’s Time For North Dakota To Statutorily Adopt the Doctrine of Avoidable Consequences, 87 N.D. L. Rev. 139 (2011).

Note: Collision Of Negligence Theory: Does A “Blackout” Constitute An Unavoidable, Sudden Emergency In North Dakota?, 87 N. Dak. L. Rev. 233 (2011).

32-03.2-02.1. Automobile accident damage liability.

Notwithstanding section 32-03.2-02, in an action by any person to recover direct and indirect damages for injury to property, the damages may not be diminished in proportion to the amount of contributing fault attributable to the person recovering, or otherwise, if:

  1. The person seeking damages is seeking property damages resulting from a motor vehicle accident in which two persons are at fault;
  2. The person seeking damages is seeking to recover direct physical property damages of not more than five thousand dollars and indirect physical property damages not to exceed one thousand dollars; and
  3. The percentage of fault of the person against whom recovery is sought is over fifty percent.

This section applies regardless as to whether the person seeking direct and indirect damages for injury to property also seeks damages for personal injury, however, damages for personal injury are not available under this section.

Source:

S.L. 1993, ch. 85, § 2; 1995, ch. 327, § 1; 2003, ch. 277, § 1.

Collateral References.

Liability of motorbus carrier or driver for death of, or injury to, discharged passenger struck by other vehicle, 16 A.L.R.5th 1.

32-03.2-03. Pure comparative fault — Product liability actions. [Repealed]

Repealed by S.L. 1993, ch. 324, § 5.

32-03.2-04. Economic and noneconomic damages for wrongful death or injury to person.

In any civil action for damages for wrongful death or injury to a person and whether arising out of breach of contract or tort, damages may be awarded by the trier of fact as follows:

  1. Compensation for economic damages, which are damages arising from medical expenses and medical care, rehabilitation services, custodial care, loss of earnings and earning capacity, loss of income or support, burial costs, cost of substitute domestic services, loss of employment or business or employment opportunities and other monetary losses.
  2. Compensation for noneconomic damages, which are damages arising from pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, fear of injury, loss or illness, loss of society and companionship, loss of consortium, injury to reputation, humiliation, and other nonpecuniary damage.

Source:

S.L. 1987, ch. 404, § 4.

Notes to Decisions

Applicability.

Although this section expressly applies only to claims accruing after July 8, 1987, it is indicative of legislative sentiment to allow these claims. Jacobs v. Anderson Bldg. Co., 430 N.W.2d 558, 1988 N.D. LEXIS 155 (N.D. 1988).

Establishing Federal Diversity Jurisdiction.

In a personal injury and property damages case arising from a train derailment, the court had diversity jurisdiction since the individuals’ alleged physical injuries and injuries in the form of noneconomic damages allowed by N.D.C.C. § 32-03.2-04 could result in a jury verdict awarding damages in excess of $75,000. Mehl v. Canadian Pac. Ry., 2004 U.S. Dist. LEXIS 22791 (D.N.D. Nov. 8, 2004).

Injury to Child.

Damages could be awarded for loss of society and companionship in a parent’s action against an allegedly negligent tortfeasor in the injury of a minor child. Jacobs v. Anderson Bldg. Co., 430 N.W.2d 558, 1988 N.D. LEXIS 155 (N.D. 1988).

Loss of Consortium.
—In General.

The effect of this section was not an expansion of the class of potential plaintiffs in loss of consortium claims; rather, it expanded the types of damages available to an already-existing class of plaintiffs. Butz v. World Wide, 492 N.W.2d 88, 1992 N.D. LEXIS 210 (N.D. 1992).

—Children.

Children do not have a cause of action for loss of parental consortium. Butz v. World Wide, 492 N.W.2d 88, 1992 N.D. LEXIS 210 (N.D. 1992).

—Joinder in Underlying Claim.

Plaintiffs bringing loss of consortium claims accruing on and after the date of this opinion must follow the procedure of compulsory joinder to the underlying personal injury action or thereafter be barred from bringing their claims, absent a compelling reason. Butz v. World Wide, 492 N.W.2d 88, 1992 N.D. LEXIS 210 (N.D. 1992).

If the “deprived” party fails to join the underlying personal injury claim, that party must offer the court a compelling reason, for non-joinder will result in an absolute bar to any loss of consortium claim asserted after the conclusion of the underlying action of the “impaired” party. Butz v. World Wide, 492 N.W.2d 88, 1992 N.D. LEXIS 210 (N.D. 1992).

Loss of Enjoyment of Life.

The trial court did not err in refusing plaintiffs’ request to instruct on loss of enjoyment of life as a separate element of damages in a case where a fourteen-year-old boy was permanently disabled from an accidental gunshot wound. First Trust Co. v. Scheels Hardware & Sports Shop, 429 N.W.2d 5, 1988 N.D. LEXIS 153 (N.D. 1988).

Mental Anguish.

Damages for mental anguish may be recovered in a wrongful death action. Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988); Dahl ex rel. Dahl v. North Am. Creameries, Inc., 61 N.W.2d 916 (N.D. 1953), overruled on other grounds, Hopkins v. McBane, 427 N.W.2d 85, 77 A.L.R.4th 391 (N.D. 1988); Hyyti v. Smith, 67 N.D. 425, 272 N.W. 747 (1937), distinguished, Jacobson v. Mutual Benefit Health & Accident Ass’n, 73 N.D. 108, 11 N.W.2d 442 (1943), overruled on other grounds, Hopkins v. McBane, 427 N.W.2d 85, 77 A.L.R.4th 391 (N.D. 1988); Stejskal v. Darrow, 55 N.D. 606, 215 N.W. 83, 53 A.L.R. 1096 (1927), overruled on other grounds, Hopkins v. McBane, 427 N.W.2d 85, 77 A.L.R.4th 391 (N.D. 1988) and Haug v. Great N. Ry., 8 N.D. 23, 77 N.W. 97 (N.D. 1898), overruled in part, Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988).

Pain and Suffering.

Trial court erred in granting defendant’s motion for a judgment as a matter of law given that the trial court dismissed plaintiff’s personal injury claim under a misconception of the law that a fact finder could not award damages for pain and suffering or other noneconomic loss unless plaintiff offered proof of economic damages. Albrecht v. Metro Area Ambulance, 2001 ND 61, 623 N.W.2d 367, 2001 N.D. LEXIS 58 (N.D. 2001).

Recovery by Children.

Adult children’s action against a doctor and a hospital under the North Dakota Wrongful Death Act, N.D.C.C. ch. 32-21, should not have been dismissed because as children of a decedent, the children were allowed to seek recovery of damages under N.D.C.C. §§ 32-21-03 and 32-21-04, and the non-economic damages requested by the children were permitted under N.D.C.C. § 32-03.2-04. Weigel v. Lee, 2008 ND 147, 752 N.W.2d 618, 2008 N.D. LEXIS 143 (N.D. 2008).

Unborn Child.

Damages in the amount of $50,000 for mental anguish and grief and $100,000 for loss of companionship, society and comfort were not clearly erroneous in an action for the death of an unborn child which would have been the plaintiff’s only daughter, in view of special significance of the mother-daughter relationship in Native American culture. Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988).

Failure in a medical malpractice action, to prove such strictly pecuniary losses as lost wages or out-of-pocket expenses did not preclude recovery of any damages for the death of an unborn child. Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988).

Wrongful Death of Child.

One may recover damages for loss of society, comfort and companionship in an action for the wrongful death of a child. Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988); Jacobs v. Anderson Bldg. Co., 430 N.W.2d 558, 1988 N.D. LEXIS 155 (N.D. 1988).

A parent can recover for the loss of a child’s society and companionship caused by the negligence of another. First Trust Co. v. Scheels Hardware & Sports Shop, 429 N.W.2d 5, 1988 N.D. LEXIS 153 (N.D. 1988).

Plaintiffs, parents of the adult decedent, were authorized to pursue a wrongful death claim against defendant corporation under N.D.C.C. § 32-21-03; therefore, they were also entitled to pursue a claim for non-economic damages as provided under this section because the emotional value of a child to the parents did not expire at majority. Schaaf v. Caterpillar, Inc., 264 F. Supp. 2d 882, 2003 U.S. Dist. LEXIS 12542 (D.N.D. 2003).

Collateral References.

Comparative fault: calculation of net recovery by applying percentage of plaintiff’s fault before or after subtracting amount of settlement by less than all joint tortfeasors, 71 A.L.R.4th 1108.

Who, other than parent, may recover for loss of consortium on death of minor child, 84 A.L.R.5th 687.

Construction and Application of Fraudulent Misjoinder Exception to Complete Diversity Rule,. 65 A.L.R. Fed. 2d 527.

Law Reviews.

Loss of Enjoyment of Life — Duplication of Damages Versus Full Compensation, 63 N.D. L. Rev. 561 (1987).

For Article: The Worth of a Human Life, see 85 N.D. L. Rev. 123 (2009).

North Dakota Supreme Court Review, (Weigel v. Lee, 2008 ND 147, 752 N.W.2d 618 (2008)), see 85 N. Dak. L. Rev. 503 (2009).

32-03.2-05. Separate finding on damages.

In awarding compensation for damages to any party, the trier of fact shall make separate findings which must specify:

  1. The amount of compensation for past economic damages.
  2. The amount of compensation for future economic damages.
  3. The amount of compensation for noneconomic damages.

Source:

S.L. 1987, ch. 404, § 5.

Notes to Decisions

Rational Boundaries.

This narrow channeling of the various categories of noneconomic claims should allay, if not dispel, apprehensions about rational boundaries on tort damages, while permitting evidentiary submission of cognizable factors. Jacobs v. Anderson Bldg. Co., 430 N.W.2d 558, 1988 N.D. LEXIS 155 (N.D. 1988).

32-03.2-06. Reduction for collateral source payments.

After an award of economic damages, the party responsible for the payment thereof is entitled to and may apply to the court for a reduction of the economic damages to the extent that the economic losses presented to the trier of fact are covered by payment from a collateral source. A “collateral source” payment is any sum from any other source paid or to be paid to cover an economic loss which need not be repaid by the party recovering economic damages, but does not include life insurance, other death or retirement benefits, or any insurance or benefit purchased by the party recovering economic damages.

Source:

S.L. 1987, ch. 404, § 6.

Notes to Decisions

Application.

This section applies only to claims for relief which accrued after the effective date of the statute, July 8, 1987. Nelson v. Trinity Medical Ctr., 419 N.W.2d 886, 1988 N.D. LEXIS 27 (N.D. 1988).

Charitable Gifts.

For the purposes of this section, a charitable gift is not a sum “paid or to be paid to cover an economic loss,” and the legislature did not intend to treat charitable gifts as a “collateral source.” Dewitz v. Emery, 508 N.W.2d 334, 1993 N.D. LEXIS 215 (N.D. 1993).

Legislative Intent.

The legislative intent of this section was to change the collateral source rule to eliminate double recovery from sources such as Workers' Compensation and Social Security. Dewitz v. Emery, 508 N.W.2d 334, 1993 N.D. LEXIS 215 (N.D. 1993).

Personal Insurance Exception.

To the extent that an injured party’s family benefited from a service benefit agreement between the family’s health insurance carrier and health care providers, the benefit was traceable to the family’s insurance policy and, therefore, was properly included in the personal insurance exception of this section. Dewitz v. Emery, 508 N.W.2d 334, 1993 N.D. LEXIS 215 (N.D. 1993).

The personal insurance exception in this section includes insurance purchased for a minor by a parent. Dewitz v. Emery, 508 N.W.2d 334, 1993 N.D. LEXIS 215 (N.D. 1993).

Benefits paid to personal injury plaintiff from Indian Health Services did not fall under the personal insurance exception to the collateral source rule and the district court did not err in reducing the judgment by the amount of those payments. Leingang v. George, 1999 ND 32, 589 N.W.2d 585, 1999 N.D. LEXIS 34 (N.D. 1999).

Social Security Disability Benefits.

Contractor’s motion to reduce the amount of damages awarded to a miner and his wife in a personal injury action under this section was denied because this section does not apply to social security disability benefits; Social Security is insurance purchased by an individual using a percentage of his or her paycheck, and the statute specifically excludes insurance. Krein v. Indus. Co., of Wyoming, 2003 U.S. Dist. LEXIS 18760 (D.N.D. Oct. 21, 2003).

Collateral References.

Collateral source rule: admissibility of evidence of availability to plaintiff of free public special education on issue of amount of damages recoverable from defendant, 41 A.L.R.5th 771.

32-03.2-07. Pleading of damages.

Any pleading for damages for death or injury to a person may pray for economic and noneconomic damages separately. Any prayer for noneconomic damages of less than fifty thousand dollars or for economic damages may be for a specific dollar amount. Any prayer for noneconomic damages for fifty thousand dollars or more must be stated generally as “a reasonable sum but not less than fifty thousand dollars”.

Source:

S.L. 1987, ch. 404, § 7.

32-03.2-08. Review of reasonableness of economic damages.

In addition to any other remedy provided by law and after a jury award of economic damages, any party responsible for the payment of any part thereof may request a review of the reasonableness of the award by the court as follows:

  1. Awards in excess of two hundred fifty thousand dollars before reduction for contributory fault and collateral source payments are subject to review for reasonableness under this chapter.
  2. The burden is on the moving party to establish that the amount of economic damage awarded was not reasonable in that it does not bear a reasonable relation to the economic damage incurred and to be incurred as proven by the party recovering the award.
  3. If the court finds that the jury award of economic damages is unreasonable, the court shall reduce the award to reasonable economic damages.

Source:

S.L. 1987, ch. 404, § 8.

Collateral References.

Validity, construction, and effect of statute limiting amount recoverable in dram shop action, 78 A.L.R.4th 542.

32-03.2-09. Periodic payments for continuing custodial care.

If an injured party claims future economic damages for continuing institutional or custodial care that will be required for a period of more than two years, at the discretion of the court any party may request the trier of fact to make a special finding of the total amount awarded for this care, separate from other future economic damages, and if a separate award is made, any party may make periodic payments for this care in an amount approved by the court, provided payment of the total award for this care is adequately secured. The adequacy of the periodic payments within the limit of the total award will be subject to review by the court from time to time, and upon the death of the injured person the obligation to provide for further continuing care shall terminate.

Source:

S.L. 1987, ch. 404, § 9.

32-03.2-10. Nondisclosure of reduction for collateral source payments.

The jury may not be informed of the potential for the reduction of economic damages because of payments from collateral sources.

Source:

S.L. 1987, ch. 404, § 10.

32-03.2-11. When court or jury may give exemplary damages.

  1. In any action for the breach of an obligation not arising from contract, when the defendant has been guilty by clear and convincing evidence of oppression, fraud, or actual malice, the court or jury, in addition to the actual damages, may give damages for the sake of example and by way of punishing the defendant. Upon commencement of the action, the complaint may not seek exemplary damages. After filing the suit, a party may make a motion to amend the pleadings to claim exemplary damages. The motion must allege an applicable legal basis for awarding exemplary damages and must be accompanied by one or more affidavits or deposition testimony showing the factual basis for the claim. The party opposing the motion may respond with affidavit or deposition testimony. If the court finds, after considering all submitted evidence, that there is sufficient evidence to support a finding by the trier of fact that a preponderance of the evidence proves oppression, fraud, or actual malice, the court shall grant the moving party permission to amend the pleadings to claim exemplary damages. For purposes of tolling the statute of limitations, pleadings amended under this section relate back to the time the action was commenced.
  2. If either party so elects, the trier of fact shall first determine whether compensatory damages are to be awarded before addressing any issues related to exemplary damages. Evidence relevant only to the claim for exemplary damages is not admissible in the proceeding on liability for compensatory damages. If an award of compensatory damages has been made, the trier of fact shall determine whether exemplary damages are to be awarded.
  3. Evidence of a defendant’s financial condition or net worth is not admissible in the proceeding on exemplary damages.
  4. If the trier of fact determines that exemplary damages are to be awarded, the amount of exemplary damages may not exceed two times the amount of compensatory damages or two hundred fifty thousand dollars, whichever is greater; provided, however, that no award of exemplary damages may be made if the claimant is not entitled to compensatory damages. In a jury trial, the jury may not be informed of the limit on damages contained in this subsection. Any jury award in excess of this limit must be reduced by the court.
  5. In order for a party to recover exemplary damages, the finder of fact shall find by clear and convincing evidence that the amount of exemplary damages awarded is consistent with the following principles and factors:
    1. Whether there is a reasonable relationship between the exemplary damage award claimed and the harm likely to result from the defendant’s conduct as well as the harm that actually has occurred;
    2. The degree of reprehensibility of the defendant’s conduct and the duration of that conduct; and
    3. Any of the following factors as to which evidence is presented:
      1. The defendant’s awareness of and any concealment of the conduct;
      2. The profitability to the defendant of the wrongful conduct and the desirability of removing that profit and of having the defendant also sustain a loss; and
      3. Criminal sanctions imposed on the defendant for the same conduct that is the basis for the exemplary damage claim, these to be taken into account if offered in mitigation of the exemplary damage award.
  6. Exemplary damages may not be awarded against a manufacturer or seller if the product’s manufacture, design, formulation, inspection, testing, packaging, labeling, and warning complied with:
    1. Federal statutes existing at the time the product was produced;
    2. Administrative regulations existing at the time the product was produced that were adopted by an agency of the federal government which had responsibility to regulate the safety of the product or to establish safety standards for the product pursuant to a federal statute; or
    3. Premarket approval or certification by an agency of the federal government.
  7. The defense in subsection 6 does not apply if the plaintiff proves by clear and convincing evidence that the product manufacturer or product seller:
    1. Knowingly and in violation of applicable agency regulations withheld or misrepresented information required to be submitted to the agency, which information was material and relevant to the harm in question; or
    2. Made an illegal payment to an official of the federal agency for the purpose of securing approval of the product.
  8. Exemplary damages may be awarded against a principal because of an act by an agent only if at least one of the following is proved by clear and convincing evidence to be true:
    1. The principal or a managerial agent authorized the doing and manner of the act;
    2. The agent was unfit and the principal or a managerial agent was reckless in employing or retaining the agent;
    3. The agent was employed in a managerial capacity and was acting in the scope of employment; or
    4. The principal or managerial agent ratified or approved the doing and manner of the act.
  9. In a civil action involving a motor vehicle accident resulting in bodily injury, it is sufficient for the trier of fact to consider an award of exemplary damages against the driver under the motion procedures provided in subsection 1 if clear and convincing evidence indicates that the accident was caused by a driver who, within the five years immediately preceding the accident has been convicted for violation of section 39-08-01 and who was operating or in physical control of a motor vehicle:
    1. With an alcohol concentration of at least eight one-hundredths of one percent by weight;
    2. Under the influence of a controlled substance unless a drug that predominantly caused impairment was used only as directed or cautioned by a practitioner who legally prescribed or dispensed the drug to the driver;
    3. Under the influence of alcohol and refused to take a test required under chapter 39-20; or
    4. Under the influence of a volatile chemical as listed in section 19-03.1-22.1.

At the trial in an action in which the trier of fact will consider an award of exemplary damages, evidence that the driver has been convicted of violating section 39-08-01 or an equivalent statute or ordinance is admissible into evidence.

Source:

S.L. 1987, ch. 404, § 11; 1993, ch. 324, § 3; 1995, ch. 305, § 2; 1997, ch. 285, § 1; 1999, ch. 301, § 1; 2003, ch. 48, § 28; 2009, ch. 285, § 1.

Effective Date.

The 2009 amendment of this section by section 1 of chapter 285, S.L. 2009 became effective August 1, 2009.

Note.

Section 12.1-31-06, referred to in this section, was repealed by S.L. 2001, ch. 214, § 10. For present provisions see § 19-03.1-22.1.

Section 2 of chapter 285, S.L. 1997 provides: “ APPLICATION. This Act applies only to actions commenced after the effective date of this Act [August 1, 1997].”

Notes to Decisions

Amount.

Where the jury specifically found that insurance company had acted in a malicious, oppressive, or fraudulent manner toward its policyholder, the necessary predicate for an award of punitive damages and this finding was supported by substantial evidence on the record, and the award of fifty thousand dollars was not excessive. Maristuen v. National States Ins. Co., 57 F.3d 673, 1995 U.S. App. LEXIS 14733 (8th Cir. N.D. 1995).

Consideration of claim.

District court misapplied the law in finding the necessary threshold of malice to add a claim for punitive damages as there was no evidence that the driver acted with ill will or wrongful motive and intended to injure the victims. Zander v. Morsette, 2021 ND 84, 959 N.W.2d 838, 2021 N.D. LEXIS 84 (N.D. 2021).

Consideration of Claim.

In an action brought pursuant to 29 USCS § 1132(a)(1)(B), a federal district court declined to consider the propriety of any punitive damage claim where the individual had yet to request leave to amend the complaint to include such a claim as required by this section. Slater v. Hartford Life, 2003 U.S. Dist. LEXIS 18172 (D.N.D. Oct. 1, 2003).

Dependence On Underlying Claims.

Law firm’s exemplary damages claim was properly dismissed because the claim was not independent of underlying abuse of process and malicious prosecution claims, which were properly dismissed. Rodenburg Law Firm v. Sira, 2019 ND 205, 931 N.W.2d 687, 2019 N.D. LEXIS 207 (N.D. 2019).

Evidence Insufficient.

Plaintiffs failed to make a showing sufficient to withstand defendants’ motion for summary judgment on the issue of punitive damages, where there was no evidence indicating that defendants’ acts were motivated by evil motive or intent or that their acts constituted oppression, fraud, malice or callous or reckless indifference to the rights of others. Veneklase v. City of Fargo, 904 F. Supp. 1038, 1995 U.S. Dist. LEXIS 19929 (D.N.D. 1995).

Northbound motorists’ motion to amend their complaint to add an exemplary damages claim, pursuant to N.D.C.C. § 32-03.2-11(1), was denied because the knowledge of an eastbound motorist, who did not see their car as she crossed an intersection, that her antidepressant medication should not have been taken with alcohol did not support a finding of oppression, fraud, or actual malice. McHugh v. Jacobs, 450 F. Supp. 2d 1019, 2006 U.S. Dist. LEXIS 74403 (D.N.D. 2006).

Given the lack of viable substantive claims by a debtor’s customers against a creditor, the customers’ claim for exemplary damages was futile, and a trial court was within its discretion to deny the customers’ motion to amend their pleadings to add a claim for exemplary damages. Thimjon Farms P'ship v. First Int'l Bank & Thimjon Farms P'ship v. First Int'l Bank & Trust, 2013 ND 160, 837 N.W.2d 327, 2013 N.D. LEXIS 162 (Sept. 6, 2013).

Defendant's use of plaintiff's property for disposal of off-lease saltwater was intentional and amounted to civil trespass because its use of property for that purpose went beyond its rights under lease. Injunction against further use of property for that purpose was appropriate, and plaintiff was entitled to statutory damages in same amount as would be appropriate if restitution principles were applied, but plaintiff was not entitled to punitive damages because it failed to prove that defendant acted with oppression, fraud, or actual malice. Raaum Estates v. Murex Petroleum Corp., 2017 U.S. Dist. LEXIS 103345 (D.N.D. July 5, 2017).

Evidence Sufficient.

Evidence was sufficient for jury to find insurer guilty of oppression, fraud, or malice, and award exemplary damages, where insurer did not properly investigate claim, alleged insured intended to misrepresent his income in application without evidence of such intent, talked to insured about settlement when he was hospitalized and under medication, threatened to sue if he sought help from an attorney, and suspended his benefits when it knew he was totally disabled. Ingalls v. Paul Revere Life Ins. Group, 1997 ND 43, 561 N.W.2d 273, 1997 N.D. LEXIS 61 (N.D. 1997).

Widow’s motion for leave to file an amended complaint to include a claim for punitive damages pursuant to N.D.C.C. § 32-03.2-11 was granted where the evidence submitted by the parties was sufficient, at this stage, to support a finding by the trier of fact that a preponderance of the evidence established that the corporation acted with oppression, fraud, or actual malice because the evidence presented to date arguably showed that (1) the corporation’s engineers were aware of a defective condition that existed; (2) the defective condition was not “designed out” and the speed control cable could stick with an open throttle to varying degrees; (3) the corporation did not adopt the protective boot or grommet that would have arguably “designed out” the defective condition; and (4) the corporation was aware that dirt and debris inside a speed control cable could have caused it to stick and that the application of the brakes when the speed control cable was stuck may not have necessarily overcome a stuck-open throttle. Olson v. Ford Motor Co., 2005 U.S. Dist. LEXIS 30526 (D.N.D. Nov. 29, 2005).

Punitive damage award was proper because defendant insurer’s tortious conduct (labeling plaintiff insured an arsonist based on insufficient grounds) evinced an indifference to or disregard of plaintiffs’ financial, emotional, and physical well-being, the insurer knew that plaintiffs were financially vulnerable, and the insurer’s treatment of plaintiffs’ claim was typical of how it handled similar claims; the record provided evidence of the reprehensibility of the insurer’s conduct. Moore v. Am. Family Mut. Ins. Co., 576 F.3d 781, 2009 U.S. App. LEXIS 18133 (8th Cir. N.D. 2009).

Issue for Jury.

There was evidence to support plaintiff’s claim of punitive damages and overcome summary judgment, where the court found reasonable jurors could conclude that police officers’ conduct in arresting plaintiff was justified, negligent, reckless, grossly negligent or willful; since the officers’ conduct was in dispute, summary judgment rejecting plaintiff’s request for punitive damages was not proper. Habiger v. City of Fargo, 905 F. Supp. 709, 1995 U.S. Dist. LEXIS 20073 (D.N.D. 1995).

Law of Case.

Defendant did not object to the jury being instructed on constructive fraud, did not object to the jury verdict that included a finding on constructive fraud, and did not object to the argument that exemplary damages were warranted at least in part due to constructive fraud; therefore, constructive fraud supporting exemplary damages became law of the case and the district court did not err entering judgment accordingly. McCormick, Inc. v. Fredericks, 2020 ND 161, 946 N.W.2d 728, 2020 N.D. LEXIS 170 (N.D. 2020).

Misleading Information.

The trial court’s finding that lessee had entered the original lease with misleading information did not constitute a specific finding of oppression, fraud, or malice, and thus the lessee was not entitled to an award of attorney fees and costs. Ehrman v. Feist, 1997 ND 180, 568 N.W.2d 747, 1997 N.D. LEXIS 198 (N.D. 1997).

Pleadings.

District court did not err by failing to award exemplary damages. Because the record did not show plaintiff moved to amend the pleadings to claim exemplary damages as required by statute, exemplary damages were not properly before the district court. Kuntz v. Leiss, 2020 ND 253, 952 N.W.2d 35, 2020 N.D. LEXIS 273 (N.D. 2020).

Retroactive Application.

Although this section did not govern because it was not enacted until 1993, the court applied the rule that when questions of law are presented for the first time, the court can take a sense of direction from the enactment of a later nonretroactive statute. Delzer v. United Bank, 1997 ND 3, 559 N.W.2d 531, 1997 N.D. LEXIS 9 (N.D. 1997).

The fact the legislature reduced the deterrent value of exemplary damages by restricting the extent that wrongdoers could be punished was not persuasive evidence that exemplary damages for conduct occurring before the legislative change was excessive. Ingalls v. Paul Revere Life Ins. Group, 1997 ND 43, 561 N.W.2d 273, 1997 N.D. LEXIS 61 (N.D. 1997).

Verdict Not Inconsistent.

There was no irreconcilable inconsistency between the jury’s award of attorney fees and its findings that employers did not abuse their qualified privilege and that a former employee was not entitled to an award of exemplary damages. The state of mind required for the jury to find no abuse of the qualified privilege and no entitlement to exemplary damages differs from the state of mind required for the jury to award attorney fees. Forster v. W. Dakota Veterinary Clinic, Inc., 2004 ND 207, 689 N.W.2d 366, 2004 N.D. LEXIS 348 (N.D. 2004), abrogated, Minto Grain, LLC v. Tibert, 2009 ND 213, 776 N.W.2d 549, 2009 N.D. LEXIS 224 (N.D. 2009).

DECISIONS UNDER PRIOR LAW

Note.

In light of the similarity of the subject matter, decisions under former N.D.C.C. § 32-03-07 are included in the annotations for this section.

Amount.

Under former N.D.C.C. § 32-03-07, there was no requirement that a punitive damage award be reasonably proportionate to the award of actual damages; however, an excessive punitive damages award would be set aside. Smith v. American Family Mut. Ins. Co., 294 N.W.2d 751, 1980 N.D. LEXIS 247 (N.D. 1980).

Under former N.D.C.C. § 32-03-07, in fixing punitive damages against defendant, a jury could consider defendant’s wealth. Dahlen v. Landis, 314 N.W.2d 63, 1981 N.D. LEXIS 371 (N.D. 1981).

Punitive damages are excessive when the amount of the award is so great that it indicates passion or prejudice on the part of the jury. Dewey v. Lutz, 462 N.W.2d 435, 1990 N.D. LEXIS 200 (N.D. 1990).

Breach of Contract.

Under former N.D.C.C. § 32-03-07, where plaintiff had not elected to waive its contract with defendant and recover in tort, it was not entitled to a jury instruction on the issue of punitive damages, even though it alleged it was entitled to them because defendant had threatened to put plaintiff out of business if it did not perform according to defendant’s expectations under a contract. Jamestown Farmers Elevator, Inc. v. General Mills, Inc., 413 F. Supp. 764, 1976 U.S. Dist. LEXIS 15288 (D.N.D. 1976).

Distributor was not entitled to recover exemplary damages under former N.D.C.C. § 32-03-07 in an action against manufacturer for breach of the distributorship contract. Hall GMC v. Crane Carrier Co., 332 N.W.2d 54, 1983 N.D. LEXIS 256 (N.D. 1983).

Breach of Insurer’s Duty to Defend.

Action by an insured against an insurer, which alleged tortious breach of the implied covenant of good faith and fair dealing, malice, oppression, and fraud predicated on the insurer’s failure to defend the insured in a legal action as required by a provision in the policy, was an action in tort for which exemplary damages could be awarded under former section 32-03-07. Smith v. American Family Mut. Ins. Co., 294 N.W.2d 751, 1980 N.D. LEXIS 247 (N.D. 1980).

Duties in Partnership.

Absent an overriding provision in a partnership agreement, the courts of this state recognize and impose the full panoply of fiduciary duties in a partnership. Hence, these duties and obligations are in addition to the agreement, and an award of punitive damages for their breach was not precluded by former section 32-03-07. Froemming v. Gate City Federal Sav. & Loan Asso., 822 F.2d 723, 1987 U.S. App. LEXIS 7348 (8th Cir. N.D. 1987).

Exemplary Damages.

Under former N.D.C.C. § 32-03-07, a specific finding of oppression, fraud, or malice, actual or presumed, by the trier of fact was required to support an award of punitive damages. Napoleon Livestock Auction v. Rohrich, 406 N.W.2d 346, 1987 N.D. LEXIS 310 (N.D. 1987).

The absence of a specific finding of oppression, fraud, or malice, actual or presumed, was fatal to an award of exemplary damages under former 32-03-07. Olson v. Fraase, 421 N.W.2d 820, 1988 N.D. LEXIS 89 (N.D. 1988).

Findings Required to Support Award.

Under former N.D.C.C. § 32-03-07, a specific finding of oppression, fraud, or malice, actual or presumed, by trier of fact was necessary to support an award of exemplary damages; intentional or willful conduct is not synonymous with fraudulent, oppressive or malicious conduct. Bismarck Realty Co. v. Folden, 354 N.W.2d 636, 1984 N.D. LEXIS 324 (N.D. 1984).

As a prerequisite to an award of punitive damages, the jury must find oppression, fraud, or malice, actual or presumed. Slaubaugh v. Slaubaugh, 466 N.W.2d 573, 1991 N.D. LEXIS 20 (N.D. 1991).

Fraud or Malice.

Malice can be presumed from recklessness. Herold v. Burlington Northern, Inc., 761 F.2d 1241, 1985 U.S. App. LEXIS 31426 (8th Cir. N.D.), cert. denied, 474 U.S. 888, 106 S. Ct. 208, 88 L. Ed. 2d 177, 1985 U.S. LEXIS 3868 (U.S. 1985).

The only significant distinction between the torts of fraud and deceit is whether the wrongdoer happens to be a party to a contract. The conduct prohibited under the separate statutory definitions of fraud and deceit is substantially identical and, for purposes of the punitive damages statute (former N.D.C.C. § 32-03-07) fraud and deceit are synonymous. Dewey v. Lutz, 462 N.W.2d 435, 1990 N.D. LEXIS 200 (N.D. 1990).

Fraudulent Representations.

Under former N.D.C.C. § 32-03-07, where obligation not to make fraudulent representations arises from law, not contract, the breach of that obligation allows the jury to award exemplary damages. Powers v. Martinson, 313 N.W.2d 720, 1981 N.D. LEXIS 360 (N.D. 1981).

Insurance Company Acting in Bad Faith.

Bad faith on part of insurance company in denying coverage under its policy with an insured was not sufficient in itself to justify the awarding of exemplary damages to the insured under former N.D.C.C. § 32-03-07; an additional finding of oppression, fraud, or malice, actual or implied, was required. Corwin Chrysler-Plymouth v. Westchester Fire Ins. Co., 279 N.W.2d 638, 1979 N.D. LEXIS 248 (N.D. 1979).

Meaning of Terms.

The statutory terms “oppression, fraud, or malice” have well-established meanings, are sufficiently clear to persons of ordinary intelligence to afford a practical guide for behavior, and are capable of application in an even-handed manner. Stoner v. Nash Finch, Inc., 446 N.W.2d 747, 1989 N.D. LEXIS 187 (N.D. 1989).

Mitigation.

The doctrine of mitigation of damages did not require a reduction in the amount of damages otherwise recoverable under former N.D.C.C. § 32-03-07 by assignor of oil and gas leases for breach of reassignment clauses by assignee; assignor’s purchase of other leases was a transaction distinct from any rights to leases for a different period of time, and there was no reason assignee should benefit from assignor’s additional effort and investment in a separate transaction. Mike Golden, Inc. v. Tenneco Oil Co., 450 N.W.2d 716, 1990 N.D. LEXIS 4 (N.D. 1990).

Oppression.

A father’s action guaranteeing his son’s bank debt, having the alleged effect of keeping cattle from the plaintiff who had purchased the cattle, did not fit the definition of oppression so as to warrant continuing a claim for punitive damages under former N.D.C.C. § 32-03-07 after subsequent discovery should have made it apparent to the plaintiff that such a claim was frivolous. Napoleon Livestock Auction v. Rohrich, 406 N.W.2d 346, 1987 N.D. LEXIS 310 (N.D. 1987).

This section authorizes the court to give damages to punish a defendant for oppressive conduct. “Oppression,” as used in this statute, means “subjecting a person to cruel and unjust hardship in conscious disregard of his rights.” Harwood State Bank v. Charon, 466 N.W.2d 601, 1991 N.D. LEXIS 25 (N.D. 1991).

Pleadings.

Complaint alleging that defendant engaged in “unlawful and prohibited conduct”; that defendant’s act “was not reasonably necessary”; that defendant did not take “reasonable care to avoid unnecessary injury to plaintiffs”; that defendant acted “without regard to the reasonable carrying capacity of plaintiffs’ land”; and that defendant’s act was “not a reasonable use of land” was insufficient to support an award of exemplary damages under former N.D.C.C. § 32-03-07. Intentional or willful conduct is not synonymous with oppressive, fraudulent or malicious conduct, and allegations of willful and intentional conduct will not warrant such a recovery. Lang v. Wonnenberg, 455 N.W.2d 832, 1990 N.D. LEXIS 104 (N.D. 1990).

Presumed Malice.

Presumed malice may be found where the defendant’s conduct amounts to a reckless disregard of the rights of others. Slaubaugh v. Slaubaugh, 466 N.W.2d 573, 1991 N.D. LEXIS 20 (N.D. 1991).

Purpose of Punitive Damages.

The purpose for awarding punitive damages is to punish the wrongdoer in order to deter him, and others, from repetition of the wrongful conduct. Dahlen v. Landis, 314 N.W.2d 63, 1981 N.D. LEXIS 371 (N.D. 1981).

Retaining Personal Property.

Where a landlord retained virtually all of a tenant’s personal property for several months, disregarding notice that his actions were unlawful and legal advice to that effect, the trial court’s consequent award of exemplary damages under former N.D.C.C. § 32-03-07 was affirmed. Kipp v. Lipp, 495 N.W.2d 56, 1993 N.D. LEXIS 6 (N.D. 1993).

Wrongful Discharge.

Under former N.D.C.C. § 32-03-07, a suit for wrongful discharge in retaliation for seeking workmen’s compensation is the kind of tort claim which allows exemplary damages. Krein v. Marian Manor Nursing Home, 415 N.W.2d 793, 1987 N.D. LEXIS 435 (N.D. 1987).

Collateral References.

Sufficiency of showing of actual damages to support award of punitive damages — modern cases, 40 A.L.R.4th 11.

Punitive damages for interference with contract or business relationship, 44 A.L.R.4th 1078.

Discovery of defendant’s sales, earnings, or profits on issue of punitive damages in tort action, 54 A.L.R.4th 998.

Punitive damages as within coverage of uninsured or underinsured motorist insurance, 54 A.L.R.4th 1186.

Plaintiff’s rights to punitive or multiple damages when cause of action renders both available, 2 A.L.R.5th 449.

Excessiveness or inadequacy of punitive damages awarded in personal injury or death cases, 12 A.L.R.5th 195.

Validity of state statutory cap on punitive damages, 103 A.L.R.5th 379.

Liability of cigarette manufacturers for punitive damages, 108 A.L.R.5th 343.

Law Reviews.

The Drunken Driver and Punitive Damages: A Survey of the Case Law and the Feasibility of a Punitive Damage Award in North Dakota, 59 N.D. L. Rev. 413 (1983).

Punitive Damages and Insurance: Are Punitive Damages Insurable? The North Dakota Supreme Court Says Yes, Despite North Dakota’s Public Policy to the Contrary, 70 N.D. L. Rev. 637 (1994).

32-03.2-12. Posttrial review.

Motions for periodic payments, reductions of awards for contributory fault and collateral source payments, for review of the reasonableness of an award, and for setting the amount of exemplary damages, must be made to the judge who presided over the trial of the action, unless the judge is unable to act, in which case, the motion must be presented to a judge designated by the presiding judge of the district in which the trial was held. The motion must be made within ten days of the jury verdict, or order of the court, and if so made, judgment may not be entered until the motion has been ruled on.

Source:

S.L. 1987, ch. 404, § 12.

CHAPTER 32-03.3 Charitable Organization Immunity

32-03.3-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Charitable organization” means a nonprofit organization whose primary purpose is for relief of poor, disabled, underprivileged, or abused persons, support of youth and youth programs, or the prevention of abuse to children and vulnerable adults.
  2. “Claim” means any claim for money damages brought against a charitable organization or an employee of the charitable organization for an injury caused by the charitable organization or an employee of the charitable organization acting within the scope of the employee’s employment.
  3. “Employee” means every present or former officer or employee of the charitable organization or any person acting on behalf of the charitable organization in an official capacity, temporarily or permanently, with or without compensation.
  4. “Injury” means personal injury, death, or property damage.
  5. “Occurrence” means an accident, including continuous or repeated exposure to a condition, which results in an injury.
  6. “Personal injury” includes bodily injury, mental injury, sickness, or disease sustained by a person and injury to a person’s rights or reputation.
  7. “Property damage” includes injury to or destruction of tangible or intangible property.
  8. “Scope of employment” means the employee was acting on behalf of the charitable organization in the performance of duties or tasks of the charitable organization assigned to the employee by the charitable organization.

Source:

S.L. 2007, ch. 288, § 1.

32-03.3-02. Liability of charitable organizations — Limitations — Statute of limitations.

  1. A charitable organization may be only held liable for money damages for a personal injury or property damage proximately caused by the negligence or wrongful act or omission of an employee acting within the employee’s scope of employment.
  2. The liability of the charitable organization under this chapter is limited to a total of two hundred fifty thousand dollars per person and one million dollars for any number of claims arising from any single occurrence. The charitable organization may not be held liable, or be ordered to indemnify an employee held liable, for punitive or exemplary damages.
  3. An action brought under this chapter must be commenced within the period provided in chapter 28-01.

Source:

S.L. 2007, ch. 288, § 2.

CHAPTER 32-03.4 Structured Settlement Transfers

32-03.4-01. Definitions.

For purposes of this chapter:

  1. “Annuity issuer” means an insurer that has issued a contract to fund periodic payments under a structured settlement.
  2. “Dependent” includes a payee’s spouse and minor children and all other persons for whom the payee is legally obligated to provide support, including alimony or support.
  3. “Discounted present value” means the present value of future payments determined by discounting those payments to the present using the most recently published applicable federal rate for determining the present value of an annuity, as issued by the United States internal revenue service.
  4. “Gross advance amount” means the sum payable to the payee or for the payee’s account as consideration for a transfer of structured settlement payment rights before any reductions for transfer expenses or other deductions to be made from such consideration.
  5. “Independent professional advice” means advice of an attorney, certified public accountant, actuary, or other licensed professional adviser:
    1. Who is engaged by a claimant or payee to render advice concerning the legal, tax, and financial implications of a structured settlement or a transfer of structured settlement payment rights;
    2. Who is not in any manner affiliated with or compensated by the defendant in the settlement or the transferee of the transfer; and
    3. Whose compensation for rendering the advice is not affected by whether a settlement or transfer occurs or does not occur.
  6. “Interested party” means, with respect to any structured settlement, the payee, any beneficiary irrevocably designated under the annuity contract to receive payments following the payee’s death, the annuity issuer, the structured settlement obligor, and any other party that has continuing rights or obligations under the structured settlement.
  7. “Net advance amount” means the gross advance amount less the aggregate amount of the actual and estimated transfer expenses required to be disclosed under subsection 5 of section 32-03.4-02.
  8. “Payee” means an individual who is receiving tax-free payments under a structured settlement and proposes to make a transfer of payment rights under the structured settlement.
  9. “Periodic payments” includes both recurring payments and scheduled future lump sum payments.
  10. “Qualified assignment agreement” means an agreement providing for a qualified assignment within the meaning of section 130 of the Internal Revenue Code [26 U.S.C. 130], as amended.
  11. “Settled claim” means the original tort claim or workers’ compensation claim resolved by a structured settlement.
  12. “Structured settlement” means an arrangement for periodic payment of damages for personal injuries or sickness established by settlement or judgment in resolution of a tort claim or for periodic payments in settlement of a workers’ compensation claim.
  13. “Structured settlement agreement” means the agreement, judgment, stipulation, or release embodying the terms of a structured settlement.
  14. “Structured settlement obligor” means, with respect to any structured settlement, the party that has the continuing obligation to make periodic payments to the payee under a structured settlement agreement or a qualified assignment agreement.
  15. “Structured settlement payment rights” means rights to receive periodic payments under a structured settlement, whether from the structured settlement obligor or the annuity issuer, if at least one of the following applies:
    1. The payee is domiciled in, or the domicile or principal place of business of the structured settlement obligor or the annuity issuer is located in, this state;
    2. The structured settlement agreement was approved by a court in this state; or
    3. The structured settlement agreement is expressly governed by the laws of this state.
  16. “Terms of the structured settlement” includes, with respect to any structured settlement, the terms of the structured settlement agreement, the annuity contract, any qualified assignment agreement, and any order or other approval of any court or other governmental authority that authorized or approved such structured settlement.
  17. “Transfer” means any sale, assignment, pledge, hypothecation, or other alienation or encumbrance of structured settlement payment rights made by a payee for consideration. The term does not include the creation or perfection of a security interest in structured settlement payment rights under a blanket security agreement entered with an insured depository institution, in the absence of any action to redirect the structured settlement payments to the insured depository institution, or an agent or successor in interest thereof, or otherwise to enforce the blanket security interest against the structured settlement payment rights.
  18. “Transfer agreement” means the agreement that provides for a transfer of structured settlement payment rights.
  19. “Transfer expenses” means all expenses of a transfer which are required under the transfer agreement to be paid by the payee or deducted from the gross advance amount, including court filing fees, attorney’s fees, escrow fees, lien recordation fees, judgment and lien search fees, finder’s fees, commissions, and other payments to a broker or other intermediary. The term does not include pre-existing obligations of the payee payable for the payee’s account from the proceeds of a transfer.
  20. “Transferee” means a party acquiring or proposing to acquire structured settlement payment rights through a transfer.

Source:

S.L. 2009, ch. 286, § 1.

Effective Date.

This chapter became effective August 1, 2009.

32-03.4-02. Required disclosures to payee.

At least three days before the date on which a payee signs a transfer agreement, the transferee shall provide to the payee a separate disclosure statement, in bold and in at least fourteen-point type, setting forth:

  1. The amounts and due dates of the structured settlement payments to be transferred;
  2. The aggregate amount of the payments;
  3. The discounted present value of the payments to be transferred, which must be identified as the “calculation of current value of the transferred structured settlement payments under federal standards for ‘valuing annuities’”, and the amount of the applicable federal rate used in calculating the discounted present value;
  4. The gross advance amount;
  5. An itemized list of all applicable transfer expenses, other than attorney’s fees and related disbursements, payable in connection with the transferee’s application for approval of the transfer and the transferee’s best estimate of the amount of any such fees and disbursements;
  6. The net advance amount;
  7. The amount of any penalties or liquidated damages payable by the payee in the event of any breach of the transfer agreement by the payee; and
  8. A statement that the payee has the right to cancel the transfer agreement, without penalty or further obligation, no later than the third business day after the date the agreement is signed by the payee.

Source:

S.L. 2009, ch. 286, § 1.

32-03.4-03. Approval of transfers of structured settlement payment rights.

A direct or indirect transfer of structured settlement payment rights is not effective and a structured settlement obligor or annuity issuer may not be required to make any payment directly or indirectly to any transferee of structured settlement payment rights unless the transfer has been approved in advance in a final court order based on the following express findings by the court:

  1. The transfer is in the best interest of the payee, taking into account the welfare and support of the payee’s dependents and whether the transaction, including the discount rate used to determine the gross advance amount and the fees and expenses used to determine the net advance amount, are fair and reasonable. If the court makes the findings as outlined in this subsection, there is not a requirement for the court to find that an applicant is suffering from a hardship to approve the transfer of structured settlement payments under this subsection;
  2. The payee has been advised in writing by the transferee to seek independent professional advice regarding the transfer and has either received that advice or knowingly waived the advice in writing; and
  3. The transfer does not contravene any applicable statute or the order of any court or other governmental authority.

Source:

S.L. 2009, ch. 286, § 1.

32-03.4-04. Effects of transfer of structured settlement payment rights.

Following a transfer of structured settlement payment rights under this chapter:

  1. The structured settlement obligor and the annuity issuer are discharged and released from all liability for the transferred payments as to all parties except the transferee;
  2. The transferee is liable to the structured settlement obligor and the annuity issuer:
    1. If the transfer contravenes the terms of the structured settlement, for any taxes incurred by those parties as a consequence of the transfer; and
    2. For any other liabilities or costs, including reasonable costs and attorney’s fees, arising from compliance by those parties with the order of the court or arising as a consequence of the transferee’s failure to comply with this chapter;
  3. Neither the annuity issuer nor the structured settlement obligor may be required to divide any periodic payment between the payee and any transferee or assignee or between two or more transferees or assignees; and
  4. Any further transfer of structured settlement payment rights by the payee may be made only after compliance with all of the requirements of this chapter.

Source:

S.L. 2009, ch. 286, § 1.

32-03.4-05. Procedure for approval of transfers.

  1. An application for approval of a transfer of structured settlement payment rights under this chapter must be made by the transferee and may be brought in the county in which the payee resides, in the county in which the structured settlement obligor or the annuity issuer maintains its principal place of business, or in any court that approved the structured settlement agreement.
  2. At least twenty days before the scheduled hearing on any application for approval of a transfer of structured settlement payment rights under section 32-03.4-03, the transferee shall file with the court and serve on all interested parties a notice of the proposed transfer and the application for its authorization. The notice must include:
    1. A copy of the transferee’s application;
    2. A copy of the transfer agreement;
    3. A copy of the disclosure statement required under section 32-03.4-02;
    4. A list of each of the payee’s dependents and each dependent’s age;
    5. Notification that any interested party is entitled to support, oppose, or otherwise respond to the transferee’s application, either in person or by counsel, by submitting written comments to the court or by participating in the hearing;
    6. Notification of the time and place of the hearing; and
    7. Notification of the manner in which and the time by which written responses to the application must be filed in order to be considered by the court, which may be not less than fifteen days after service of the transferee’s notice.

Source:

S.L. 2009, ch. 286, § 1.

32-03.4-06. No waiver by payee.

The requirements of this chapter may not be waived by any payee.

Source:

S.L. 2009, ch. 286, § 1.

32-03.4-07. Disputes decided under state law.

Any transfer agreement entered on or after the effective date of this chapter by a payee who resides in this state must provide that disputes under the transfer agreement, including any claim that the payee has breached the agreement, must be determined in and under the laws of this state. Such a transfer agreement may not authorize the transferee or any other party to confess judgment or consent to entry of judgment against the payee.

Source:

S.L. 2009, ch. 286, § 1.

32-03.4-08. Life-contingent payments not to be transferred — Exception.

A transfer of structured settlement payment rights may not extend to any payments that are life-contingent unless, before the date on which the payee signs the transfer agreement, the transferee has established and has agreed to maintain procedures reasonably satisfactory to the annuity issuer and the structured settlement obligor for periodically confirming the payee’s survival and giving the annuity issuer and the structured settlement obligor prompt written notice in the event of the payee’s death.

Source:

S.L. 2009, ch. 286, § 1.

32-03.4-09. No payee liability for failure to comply with chapter.

A payee who proposes to make a transfer of structured settlement payment rights may not incur any penalty, forfeit any application fee or other payment, or otherwise incur any liability to the proposed transferee or any assignee based on any failure of the transfer to satisfy the conditions of this chapter.

Source:

S.L. 2009, ch. 286, § 1.

32-03.4-10. Effect of chapter on existing laws and transfer agreements.

This chapter does not authorize any transfer of structured settlement payment rights in contravention of any law nor does this chapter imply that any transfer under a transfer agreement entered before August 1, 2009, is valid or invalid.

Source:

S.L. 2009, ch. 286, § 1.

32-03.4-11. Transferee solely responsible for certain requirements.

In any transfer of structured settlement payment rights, compliance with the requirements of section 32-03.4-02 and fulfillment of the conditions of section 32-03.4-03 are the sole responsibility of the transferee. Neither the structured settlement obligor nor the annuity issuer bears any responsibility for, or any liability arising from, noncompliance with those requirements or failure to fulfill those conditions.

Source:

S.L. 2009, ch. 286, § 1.

32-03.4-12. Penalty.

Any transferee that willfully violates this chapter is guilty of an infraction. A second or subsequent violation of this chapter is a class B misdemeanor.

Source:

S.L. 2009, ch. 286, § 1.

32-03.4-13. Applicability of chapter.

This chapter applies to any transfer of structured settlement payment rights under a transfer agreement entered after July 31, 2009. This chapter does not imply that any transfer under a transfer agreement reached before August 1, 2009, is either effective or ineffective.

Source:

S.L. 2009, ch. 286, § 1.

CHAPTER 32-04 Specific Relief

32-04-01. When specific relief given.

Specific relief may be given in the cases specified in this chapter and in no other cases.

Source:

Civ. C. 1877, § 1987; R.C. 1895, § 5017; R.C. 1899, § 5017; R.C. 1905, § 6602; C.L. 1913, § 7185; R.C. 1943, § 32-0401.

Derivation:

Cal. Civ. C., 3366.

Notes to Decisions

Remedy in Equity.

Specific performance of a contract is an equitable remedy and thus when a party asks for specific performance he is held to a higher standard than if he merely asks for money damages for breach of the contract. Sand v. Red River Nat'l Bank & Trust Co., 224 N.W.2d 375, 1974 N.D. LEXIS 132 (N.D. 1974).

Collateral References.

Specific Performance 2 et seq.

71 Am. Jur. 2d, Specific Performance, § 4 et seq.

81 C.J.S. Specific Performance, §§ 4 et seq.

32-04-02. How specific relief given.

Specific relief is given:

  1. By taking possession of a thing and delivering it to a claimant;
  2. By compelling a party to do that which ought to be done; or
  3. By declaring and determining the rights of parties, otherwise than by an award of damages.

Source:

Civ. C. 1877, § 1988; R.C. 1895, § 5018; R.C. 1899, § 5018; R.C. 1905, § 6603; C.L. 1913, § 7186; R.C. 1943, § 32-0402.

Derivation:

Cal. Civ. C., 3367.

32-04-03. Specific relief not given to enforce penal law.

Specific relief cannot be granted to enforce a penal law, except in case of nuisance, nor to enforce a penalty or forfeiture in any case.

Source:

Civ. C. 1877, § 1990; R.C. 1895, § 5020; R.C. 1899, § 5020; R.C. 1905, § 6605; C.L. 1913, § 7188; R.C. 1943, § 32-0403.

Derivation:

Cal. Civ. C., 3369.

32-04-04. Method of recovering real property.

A person entitled to specific real property by reason either of a perfected title, or of a claim to title which ought to be perfected, may recover the same either by a judgment for its possession to be executed by the sheriff, or by a judgment requiring the other party to perfect the title and to deliver possession of the property.

Source:

Civ. C. 1877, § 1991; R.C. 1895, § 5021; R.C. 1899, § 5021; R.C. 1905, § 6606; C.L. 1913, § 7189; R.C. 1943, § 32-0404.

Derivation:

Cal. Civ. C., 3375.

Notes to Decisions

Conveyance Ordered.

Trial court did not err in ordering specific performance of stipulations related to a partition action made in 1994 which conveyed interest in land given that the stipulations constituted a then present conveyance and not an agreement to convey in the future. Des Lacs Valley Land Corp. v. Herzig, 2001 ND 17, 621 N.W.2d 860, 2001 N.D. LEXIS 14 (N.D. 2001).

Collateral References.

Specific Performance 131.

71 Am. Jur. 2d, Specific Performance, §§ 198 et seq.

81A C.J.S. Specific Performance, §§ 164, 165.

Land contract conditioned upon purchaser’s securing loan, 5 A.L.R.2d 287.

Option executed simultaneously with mortgage for purchase of mortgaged property by mortgagee as subject of specific performance, 10 A.L.R.2d 231.

Change of conditions after execution of contract for sale of real property as affecting right to specific performance, 11 A.L.R.2d 390.

Nature of deed which may be required of vendor who is unable to convey title for which he has contracted, 13 A.L.R.2d 1462.

Personal covenant in recorded deed against grantee’s lessee or successor, specific performance of, 23 A.L.R.2d 520, 527.

Valuation: specific performance to determine valuation, where arbitration or appraisal has failed, under long term lease providing for appraisal of premises and fixing rental value at stated intervals, 26 A.L.R.2d 744.

Landlord’s breach of covenant to repair, specific performance as available to tenant under, 28 A.L.R.2d 446.

Parties to action for specific performance of contract for conveyance of realty after death of party to the contract, 43 A.L.R.2d 938.

Option for repurchase by vendor, specific performance of, 44 A.L.R.2d 342, 345.

Land sale contract providing that title must be satisfactory to purchaser, specific performance of, 47 A.L.R.2d 455, 461.

Indefiniteness as precluding specific performance of contract for sale or exchange of real estate failing to specify time for giving of possession, 56 A.L.R.2d 1272, 1274.

Uncertainty as to terms of mortgage or of accompanying note or bond contemplated by real estate sales contract as affecting right to specific performance, 60 A.L.R.2d 251.

Nature of action as one for specific performance of realty contract, 63 A.L.R.2d 456, 459.

Adequacy of consideration: necessity and sufficiency of allegation, in a suit for specific performance on a contract for the sale of land, as to the adequacy of the consideration or as to the fairness of the contract, 100 A.L.R.2d 551.

Price: requisite definiteness of price to be paid in event of exercise of option for purchase of property, 2 A.L.R.3d 701.

Subordination agreement: requisite definiteness of provision in contract for sale or lease of land, that vendor or landlord will subordinate his interest to permit other party to obtain financing, 26 A.L.R.3d 855.

Zoning or other public restrictions on the use of property as affecting rights and remedies of parties to contract for the sale thereof, 39 A.L.R.3d 362.

Payment: specific performance of land contract notwithstanding failure of vendee to make required payments on time, 55 A.L.R.3d 10.

32-04-05. Method of recovering personal property.

A person entitled to the immediate possession of specific personal property may recover the same in the manner provided by this title.

Source:

Civ. C. 1877, § 1992; R.C. 1895, § 5022; R.C. 1899, § 5022; R.C. 1905, § 6607; C.L. 1913, § 7190; R.C. 1943, § 32-0405.

Derivation:

Cal. Civ. C., 3379.

Collateral References.

Specific Performance 67-72.

71 Am. Jur. 2d, Specific Performance, §§ 198 et seq.

81 C.J.S. Specific Performance, §§ 80-85.

32-04-06. Specific delivery of personal property compellable.

Any person having the possession or control of a particular article of personal property of which such person is not the owner may be compelled specifically to deliver it to the person entitled to its immediate possession.

Source:

Civ. C. 1877, § 1993; R.C. 1895, § 5023; R.C. 1899, § 5023; R.C. 1905, § 6608; C.L. 1913, § 7191; R.C. 1943, § 32-0406.

Derivation:

Cal. Civ. C., 3380.

32-04-07. When specific performance compelled.

Except as otherwise provided in this chapter, the specific performance of an obligation may be compelled.

Source:

Civ. C. 1877, § 1994; R.C. 1895, § 5024; R.C. 1899, § 5024; R.C. 1905, § 6609; C.L. 1913, § 7192; R.C. 1943, § 32-0407.

Notes to Decisions

Consideration and Mutual Assent.

Consideration and mutual assent in a contract are elements prerequisite to specific performance. Kaster v. Mason, 13 N.D. 107, 99 N.W. 1083, 1904 N.D. LEXIS 25 (N.D. 1904).

Contract to Convey Real Property.

Evidence that farm owner intended to sell his farming assets to his nephews for less than full market value to give them a “good deal” so they could “make it,” combined with the nephews’ modified written offer to buy the farm assets made the terms of the parties’ agreement sufficiently certain to support the trial court’s order specifically enforcing the contract. Kuntz v. Kuntz, 1999 ND 114, 595 N.W.2d 292, 1999 N.D. LEXIS 94 (N.D. 1999).

Contract to Devise Property.

Contract to devise property or to make a will may be enforced by specific performance. Kuhn v. Kuhn, 281 N.W.2d 230, 1979 N.D. LEXIS 270 (N.D. 1979).

Contracts Containing Continuous Covenants.

A court of equity will not decree specific performance of contracts containing continuous covenants the enforcement of which might require the constant supervision of a court. Kidd v. McGinnis, 1 N.D. 331, 48 N.W. 221, 1891 N.D. LEXIS 2 (N.D. 1891).

32-04-08. Remedy of specific performance must be mutual.

Neither party to an obligation can be compelled specifically to perform it, unless the other party thereto has performed, or is compelled specifically to perform, everything to which the former is entitled under the same obligation, either completely or nearly so, together with full compensation for any want of entire performance.

Source:

Civ. C. 1877, § 1995; R.C. 1895, § 5025; R.C. 1899, § 5025; R.C. 1905, § 6610; C.L. 1913, § 7193; R.C. 1943, § 32-0408.

Derivation:

Cal. Civ. C., 3386.

Notes to Decisions

Application of Statute.

Under the statute, where there is no mutual remedy between the parties to a contract, an action for specific performance by a party thereto will not lie unless such party has performed the contract on his part or he can be compelled specifically to perform the same. Knudtson v. Robinson, 18 N.D. 12, 118 N.W. 1051, 1908 N.D. LEXIS 111 (N.D. 1908).

The rule of mutuality either as a rule of equity or under this section has no application to contracts that have been fully performed by one seeking specific performance. Alfson v. Anderson, 78 N.W.2d 693, 1956 N.D. LEXIS 145 (N.D. 1956).

Contract for Conveyance of Land.

Where the covenant to pay is independent, an action at law for the purchase price may be maintained, but where the time for the delivery of the deed has arrived before suit is brought for the price, the only action which on principle can be maintained by the vendor is one for specific performance. Shelly v. Mikkelson, 5 N.D. 22, 63 N.W. 210, 1895 N.D. LEXIS 7 (N.D. 1895).

Where a contract for the sale of realty required the purchaser to deliver specified quantities of wheat or the equivalent in money, an action for the purchase price would be the equivalent of an action for specific performance, so there was mutuality of remedy. Pederson v. Dibble, 12 N.D. 572, 98 N.W. 411, 1904 N.D. LEXIS 8 (N.D. 1904).

An action for specific performance may be maintained upon a contract for the conveyance of land which is signed only by the vendor. Beddow v. Flage, 22 N.D. 53, 132 N.W. 637, 1911 N.D. LEXIS 14 (N.D. 1911).

Specific performance of a land contract cannot be enforced unless both parties are bound by the contract. Ugland v. Kolb, 23 N.D. 158, 134 N.W. 879, 1912 N.D. LEXIS 63 (N.D. 1912).

A contract for the sale of real estate ordinarily imports mutuality. The vendor may be compelled by a decree of specific performance to convey according to the terms and conditions provided in the contract or the vendee may be compelled to perform specifically even though his performance consists only of the payment of the purchase price. Alfson v. Anderson, 78 N.W.2d 693, 1956 N.D. LEXIS 145 (N.D. 1956).

Purchasers who breached agreement for sale of grain elevator by stopping payment of their check were not in position to demand specific performance under this section. Zundel v. Farmers Union Grain Co., 79 N.W.2d 48, 1956 N.D. LEXIS 150 (N.D. 1956).

Lack of mutuality did not preclude a purchaser from seeking partial specific performance where the seller did not own all of the property included in the contract. Green v. Gustafson, 482 N.W.2d 842, 1992 N.D. LEXIS 56 (N.D. 1992).

Declaration of Common Law Rule.

This section is merely a declaration of the long-standing common law rule. Green v. Gustafson, 482 N.W.2d 842, 1992 N.D. LEXIS 56 (N.D. 1992).

Equitable Remedy.

Specific performance is an equitable remedy governed by equitable principles. Alfson v. Anderson, 78 N.W.2d 693, 1956 N.D. LEXIS 145 (N.D. 1956).

Oil and Gas Lease.

A contract to make an oil and gas lease, which may be terminated at the will of the lessee, is specifically enforceable if the contract contains important mutually enforceable provisions such as the payment of a substantial sum as consideration for making the lease and rental for the first rental period which are in themselves enforceable regardless of the surrender of the lease. Alfson v. Anderson, 78 N.W.2d 693, 1956 N.D. LEXIS 145 (N.D. 1956).

A party to a contract to execute an oil and gas lease cannot prevent performance by the opposite party and use that lack of performance as a basis for invoking this section as a defense to an action for specific performance. Alfson v. Anderson, 78 N.W.2d 693, 1956 N.D. LEXIS 145 (N.D. 1956).

Lack of mutuality of remedy in a proposed lease is not always fatal to the right to specifically enforce a contract to make such a lease. Alfson v. Anderson, 78 N.W.2d 693, 1956 N.D. LEXIS 145 (N.D. 1956).

Collateral References.

Specific Performance 6, 32.

71 Am. Jur. 2d, Specific Performance, §§ 24 et seq.

81 C.J.S. Specific Performance, §§ 8, 9.

Land contract conditioned upon purchaser’s securing loan, 5 A.L.R.2d 287.

Will or conveyance of property at death in consideration of support or services, mutuality as affecting specific performance of contract for, during promisor’s lifetime, 7 A.L.R.2d 1166, 1171.

Termination: specific performance of contract, other than lease or agreement therefor, or contract for services, terminable by one party but not the other, 8 A.L.R.2d 1208.

Comment note: Mutuality of remedy as essential to granting of specific performance, 22 A.L.R.2d 508.

Specific performance of land sale contract providing that title must be satisfactory to purchaser, 47 A.L.R.2d 455, 461.

Failure of vendee to make required payments on time, specific performance of land contract notwithstanding, 55 A.L.R.3d 10.

Law Reviews.

Specific Performance of Land Contracts in North Dakota, 26 Bar Briefs, State Bar Ass’n of N.D. 389 (1950).

32-04-09. Presumption as to relief for not transferring property.

It is to be presumed that the breach of an agreement to transfer real property cannot be relieved adequately by pecuniary compensation and that the breach of an agreement to transfer personal property can be thus relieved.

Source:

Civ. C. 1877, § 1996; R.C. 1895, § 5026; R.C. 1899, § 5026; R.C. 1905, § 6611; C.L. 1913, § 7194; R.C. 1943, § 32-0409.

Derivation:

Cal. Civ. C., 3387.

Notes to Decisions

Contract for Sale of Real Property.

While this section supports buyer’s right to specific performance of contract for sale of real property on the ground that monetary damages are presumed to be inadequate, no similar statutory presumption exists to support an action for specific performance by the seller of real property; therefore, sellers were not entitled to specific performance of contract for sale of real property where they failed to meet their burden of proving that the legal remedy for breach of the contract was inadequate. Wolf v. Anderson, 334 N.W.2d 212, 1983 N.D. LEXIS 283 (N.D. 1983).

Royalty Interest.

The trial court did not err in granting plaintiff, a corporation engaged in finding abandoned or marginally profitable oil and gas wells, specific performance of an overriding royalty interest in the wells, since a royalty interest is real property. Geostar Corp. v. Parkway Petroleum, 495 N.W.2d 61, 1993 N.D. LEXIS 12 (N.D. 1993).

Specific Performance.

District court erred in awarding damages instead of specific performance in a quiet title action where the presumption under N.D.C.C. § 32-04-09 placed the onus on the sellers to prove monetary damages were adequate once the purchasers showed the inadequacy of damages and pled for specific performance, and the district court did not apply that presumption. Dale Exploration, LLC v. Hiepler, 2018 ND 271, 920 N.W.2d 750, 2018 N.D. LEXIS 281 (N.D. 2018).

32-04-10. Specific performance compelled though contract signed only by one.

A party who has signed a written contract may be compelled specifically to perform it, though the other party has not signed it, if the latter has performed or offers to perform it on the latter’s part and the case is proper otherwise for enforcing specific performance.

Source:

Civ. C. 1877, § 1997; R.C. 1895, § 5027; R.C. 1899, § 5027; R.C. 1905, § 6612; C.L. 1913, § 7195; R.C. 1943, § 32-0410.

Derivation:

Cal. Civ. C., 3388.

Notes to Decisions

Contract to Convey Land.

An action for specific performance may be maintained upon a contract for the conveyance of land which is signed only by the vendor. Beddow v. Flage, 22 N.D. 53, 132 N.W. 637, 1911 N.D. LEXIS 14 (N.D. 1911).

32-04-11. Contracts compelled though penalty imposed or damages liquidated.

A contract otherwise proper to be enforced specifically may be thus enforced, though a penalty is imposed, or the damages are liquidated, for its breach, and the party in default is willing to pay the same.

Source:

Civ. C. 1877, § 1998; R.C. 1895, § 5028; R.C. 1899, § 5028; R.C. 1905, § 6613; C.L. 1913, § 7196; R.C. 1943, § 32-0411.

Derivation:

Cal. Civ. C., 3389.

Collateral References.

Specific Performance 58.

71 Am. Jur. 2d, Specific Performance, §§ 73-76.

81 C.J.S. Specific Performance, § 39.

32-04-12. What obligations cannot be enforced specifically.

The following obligations cannot be enforced specifically:

  1. An obligation to render personal service.
  2. An obligation to employ another in personal service.
  3. An agreement to perform an act that the party has no power lawfully to perform when required to do so.
  4. An agreement to procure the act or consent of the spouse of the contracting party or of any other third person.
  5. An agreement, the terms of which are not sufficiently certain to make the precise act that is to be done clearly ascertainable.

Source:

Civ. C. 1877, § 1999; R.C. 1895, § 5029; R.C. 1899, § 5029; R.C. 1905, § 6614; C.L. 1913, § 7197; R.C. 1943, § 32-0412; S.L. 1983, ch. 172, § 40; 1985, ch. 373, § 1.

Notes to Decisions

Arbitration Agreements.

Binding arbitration is not against public policy, and in the absence of fraud or deception, an agreement between a school board and a teacher’s association to submit certain disputes to binding arbitration is valid. West Fargo Pub. Sch. Dist. v. West Fargo Educ. Ass'n, 259 N.W.2d 612, 1977 N.D. LEXIS 215 (N.D. 1977).

Contractual provision between city and contractor providing for specific enforcement of agreement to arbitrate was unenforceable. Wagner Bros. v. Williston, 335 N.W.2d 328, 1983 N.D. LEXIS 341 (N.D. 1983).

Certainty of Terms.

Specific performance must be denied when the terms of a contract are not sufficiently certain to make the act which is to be done clearly ascertainable. Beebe v. Hanson, 40 N.D. 559, 169 N.W. 31, 1918 N.D. LEXIS 95 (N.D. 1918).

Purchasers were not entitled to court-ordered specific performance of purchase agreement for sale of apartment building, which was held not to be sufficiently certain nor just and reasonable, where seller’s interest was to be subordinated to a lender’s interest. Linderkamp v. Hoffman, 1997 ND 64, 562 N.W.2d 734, 1997 N.D. LEXIS 79 (N.D. 1997).

Employment Contracts.

Reinstatement is not an enforceable remedy because it constitutes an obligation to employ another in personal service. Dimond v. State, 1999 ND 228, 603 N.W.2d 66, 1999 N.D. LEXIS 242 (N.D. 1999).

Injunction.

A final injunction, when authorized, may be granted to restrain the breach of a contract unless it is one the performance of which could not be specifically enforced. Mevorah v. Goodman, 65 N.W.2d 278, 1954 N.D. LEXIS 85, 1954 N.D. LEXIS 86 (N.D. 1954).

Teacher’s Contract.

A teacher cannot specifically enforce a contract of employment. Henley v. Fingal Pub. Sch. Dist., 219 N.W.2d 106, 1974 N.D. LEXIS 210 (N.D. 1974).

Teacher employed by a private institution has no right to specific enforcement or injunctive relief to obtain reinstatement of her teaching position for alleged wrongful termination or to prevent a breach of her employment contract. Schauer v. Jamestown College, 323 N.W.2d 114, 1982 N.D. LEXIS 369 (N.D. 1982).

Telephone Service.

This section does not apply to a proceeding to enjoin the removal of telephones and discontinuance of service in certain railway depots. Great N. Ry. v. Sheyenne Tel. Co., 27 N.D. 256, 145 N.W. 1062, 1914 N.D. LEXIS 44 (N.D. 1914).

Collateral References.

Specific Performance 14, 27-30, 73, 80.

81 C.J.S. Specific Performance, §§ 28-31, 45, 63, 71, 76.

Financing: provision making purchaser’s obligation under land contract conditional upon securing loan, 5 A.L.R.2d 287.

Conveyance or devise of property at death in consideration of services, specific performance of contract for, during promisor’s lifetime, 7 A.L.R.2d 1166, 1171.

Compromise and settlement agreement, 48 A.L.R.2d 1211.

Indefiniteness as precluding specific performance of contract for sale or exchange of real estate failing to specify time for giving of possession, 56 A.L.R.2d 1272, 1274.

Uncertainty as to terms of mortgage or of accompanying note or bond contemplated by real estate sales contract as affecting right to specific performance, 60 A.L.R.2d 251.

Arbitrators’ power to award injunction or specific performance, 70 A.L.R.2d 1055.

Price: requisite definiteness of price to be paid in event of exercise of option for purchase of property, 2 A.L.R.3d 701.

Subordination agreement: requisite definiteness of provision in contract for sale or lease of land, that vendor or landlord will subordinate his interest to permit other party to obtain financing, 26 A.L.R.3d 855.

Law Reviews.

Arbitration of Claims of Contract Unconscionability, 56 N.D. L. Rev. 7 (1980).

32-04-13. When specific performance cannot be enforced against one.

Specific performance cannot be enforced against a party to a contract in any of the following cases:

  1. If the party has not received an adequate consideration for the contract.
  2. If it is not as to that party just and reasonable.
  3. If such party’s assent was obtained by misrepresentation, concealment, circumvention, or unfair practice of any party to whom performance would become due under the contract, or by any promise of such party which has not been substantially fulfilled.
  4. If the party’s assent was given under the influence of mistake, misapprehension, or surprise, except that when the contract provides for compensation in case of mistake, a mistake within the scope of such provision may be compensated for and the contract specifically enforced in other respects, if proper to be so enforced.

Source:

Civ. C. 1877, § 2000; R.C. 1895, § 5030; R.C. 1899, § 5030; R.C. 1905, § 6615; C.L. 1913, § 7198; R.C. 1943, § 32-0413.

Derivation:

Cal. Civ. C., 3391.

Notes to Decisions

Discretion of Trial Court.

The granting of specific performance rests in the sound discretion of the trial court and the supreme court will not interfere with that discretion unless shown it was abused. Harrington v. Harrington, 365 N.W.2d 552, 1985 N.D. LEXIS 288 (N.D. 1985).

Although it had not cited N.D.C.C. § 32-04-13 in granting the brother specific performance, the district court had discussed the case law in analyzing the undisputed facts in the instant case. Molbert v. Kornkven, 2018 ND 120, 910 N.W.2d 888, 2018 N.D. LEXIS 114 (N.D. 2018).

Inadequate Consideration.

Specific performance will not be enforced unless the contract is just and reasonable and made for an adequate consideration. Carey v. Campbell, 45 N.D. 273, 177 N.W. 372, 1920 N.D. LEXIS 121 (N.D. 1920).

Specific performance of an alleged option contract for the sale of land should have been denied where there was no consideration for the contract. Streeter v. Archer, 46 N.D. 251, 176 N.W. 826, 1920 N.D. LEXIS 2 (N.D. 1920).

Inadequacy of consideration to warrant a denial of specific performance of a contract must be determined upon a consideration of all the circumstances of the case and it must appear that the transaction is not fair and reasonable. Arhart v. Thompson, 75 N.D. 569, 31 N.W.2d 56, 1948 N.D. LEXIS 82 (N.D. 1948).

Mere inadequacy of consideration does not justify a denial of specific performance in the absence of unfairness or overreaching. Harrington v. Harrington, 365 N.W.2d 552, 1985 N.D. LEXIS 288 (N.D. 1985).

Generally, specific performance will be denied only when the inadequacy of consideration is such as to demonstrate some gross imposition, undue influence, or shocks the conscience. Harrington v. Harrington, 365 N.W.2d 552, 1985 N.D. LEXIS 288 (N.D. 1985).

Misrepresentation.

Because credible testimony supported the family’s position that the buyers misrepresented the disputed contract to the family as a right of first refusal, the buyers were not entitled to specific performance under N.D.C.C. § 32-04-13 due to their misrepresentations. Landers v. Biwer, 2006 ND 109, 714 N.W.2d 476, 2006 N.D. LEXIS 111 (N.D. 2006).

Not Just and Reasonable.

Purchasers were not entitled to court-ordered specific performance of purchase agreement for sale of apartment building, which was held not to be sufficiently certain nor just and reasonable, where seller’s interest was to be subordinated to a lender’s interest. Linderkamp v. Hoffman, 1997 ND 64, 562 N.W.2d 734, 1997 N.D. LEXIS 79 (N.D. 1997).

Terms of Contract Uncertain.

Specific performance must be denied when the terms of a contract are not sufficiently certain to make the act which is to be done clearly ascertainable. Beebe v. Hanson, 40 N.D. 559, 169 N.W. 31, 1918 N.D. LEXIS 95 (N.D. 1918).

Undue Influence.

Undue influence is ground for denial of specific performance; and the existence of undue influence may be shown by 1. a person who can be influenced; 2. improper influence exerted; and 3. submission to the overmastering effect of such conduct. Sand v. Red River Nat'l Bank & Trust Co., 224 N.W.2d 375, 1974 N.D. LEXIS 132 (N.D. 1974).

Collateral References.

Specific Performance 16, 48-54, 87-89, 97.

81 C.J.S. Specific Performance, §§ 35, 36, 40-42, 77, 78, 82-99.

Misrepresentation as to matters other than quantity or title, specific performance with abatement from purchase price for, 7 A.L.R.2d 1331.

Change of conditions after execution of contract or option for sale of real property as affecting right to specific performance, 11 A.L.R.2d 390.

Allegations: necessity and sufficiency of allegation, in a suit for specific performance on a contract for the sale of land, as to the adequacy of the consideration or as to the fairness of the contract, 100 A.L.R.2d 551.

Failure of vendee to make required payments on time, specific performance of land contract notwithstanding, 55 A.L.R.3d 10.

32-04-14. When specific performance cannot be enforced in favor of one.

Specific performance cannot be enforced in favor of a party who has not fully and fairly performed all the conditions precedent on such party’s part to the obligation of the other party, except when such party’s failure to perform is only partial and either entirely immaterial or capable of being fully compensated, in which case specific performance may be compelled upon full compensation being made for the default.

Source:

Civ. C. 1877, § 2001; R.C. 1895, § 5031; R.C. 1899, § 5031; R.C. 1905, § 6616; C.L. 1913, § 7199; R.C. 1943, § 32-0414.

Derivation:

Cal. Civ. C., 3392.

Notes to Decisions

Abandonment of Contract.

Equity will not extend the extraordinary relief afforded by specific performance to a vendee who has been grossly negligent of his rights or has abandoned his contract. Raasch v. Goulet, 57 N.D. 674, 223 N.W. 808, 1929 N.D. LEXIS 315 (N.D. 1929), overruled, Ziebarth v. Kalenze, 238 N.W.2d 261, 1976 N.D. LEXIS 185 (N.D. 1976).

Contract to Convey Land.

Equity, before specifically enforcing a contract to convey real estate, will insist on showing the utmost good faith on the part of the purchaser. Raasch v. Goulet, 57 N.D. 674, 223 N.W. 808, 1929 N.D. LEXIS 315 (N.D. 1929), overruled, Ziebarth v. Kalenze, 238 N.W.2d 261, 1976 N.D. LEXIS 185 (N.D. 1976).

Option to Purchase Land.

Plaintiff tenant was entitled to specific performance of contract giving him an option to purchase land upon tender of all sums coming to the defendant landlord, including damages sustained by defendant due to plaintiff’s noncompliance with all of the contract provisions. Kern v. Kelner, 77 N.D. 948, 48 N.W.2d 90, 1951 N.D. LEXIS 125 (N.D. 1951).

Part Performance.

As a general rule, specific performance cannot be enforced in favor of a party who has not fully and fairly performed all the conditions precedent on his part to the obligation of the other party; but when his failure to perform is only partial and capable of being fully compensated, specific performance may be compelled upon full compensation being made for the default. Kern v. Kelner, 77 N.D. 948, 48 N.W.2d 90, 1951 N.D. LEXIS 125 (N.D. 1951).

Collateral References.

Specific Performance 10, 13, 40-47, 94.

81 C.J.S. Specific Performance, §§ 10, 13, 14, 50-54, 82-99.

Change of conditions after execution of contract or option for sale of real property as affecting right to specific performance, 11 A.L.R.2d 390.

Futility as affecting specific performance of agreement, or provision thereof, involving partnership at will, 70 A.L.R.2d 618.

Failure of vendee to make required payments on time, specific performance of land contract notwithstanding, 55 A.L.R.3d 10.

32-04-15. Effect of imperfect title.

An agreement for the sale of property cannot be enforced specifically in favor of a seller who cannot give to the buyer a title free from reasonable doubt.

Source:

Civ. C. 1877, § 2002; R.C. 1895, § 5032; R.C. 1899, § 5032; R.C. 1905, § 6617; C.L. 1913, § 7200; R.C. 1943, § 32-0415.

Derivation:

Cal. Civ. C., 3394.

Notes to Decisions

Name of Grantee Omitted from Deed.

A contract for the sale of land is not enforceable by specific performance where title is not reasonably free from doubt. Brugman v. Charlson, 44 N.D. 114, 171 N.W. 882, 1919 N.D. LEXIS 193 (N.D. 1919).

Nonmerchantable Title.

A purchaser of land cannot be compelled to accept a deed if it appears that the title is not merchantable. Easton v. Lockhart, 10 N.D. 181, 86 N.W. 697, 1901 N.D. LEXIS 19 (N.D. 1901).

Collateral References.

Specific Performance 95.

81 C.J.S. Specific Performance, § 99.

Nature of deed which may be required of vendor who was unable to convey title for which he has contracted, 13 A.L.R.2d 1462.

Satisfactory to purchaser, land sale contract providing that title must be, 47 A.L.R.2d 455, 461.

Zoning or rezoning of property, provision making option contract subject to, 76 A.L.R.2d 1195, 1196.

Possibility of issue extinct, doctrine as to, as affecting validity of title, 98 A.L.R.2d 1285.

Marketability of title as affected by lien dischargeable only out of funds to be received from purchaser at closing, 53 A.L.R.3d 678.

32-04-16. When enforced against subsequent holder.

Whenever an obligation in respect to real property would be enforced specifically against a particular person, it may be enforced in like manner against any other person claiming under that particular person by a title created subsequently to the obligation, except a purchaser or encumbrancer in good faith and for value, and except also that any such person may exonerate himself or herself by conveying all such person’s estate to the person entitled to enforce the obligation.

Source:

Civ. C. 1877, § 2003; R.C. 1895, § 5033; R.C. 1899, § 5033; R.C. 1905, § 6618; C.L. 1913, § 7201; R.C. 1943, § 32-0416.

Derivation:

Cal. Civ. C., 3395.

Notes to Decisions

Preexisting Royalty Interest.

Where an energy company took an interest in oil wells with knowledge of an overriding royalty interest, it was not a good faith purchaser for value; accordingly, the overriding interest could be specifically enforced. Geostar Corp. v. Parkway Petroleum, 495 N.W.2d 61, 1993 N.D. LEXIS 12 (N.D. 1993).

Purchaser in Good Faith.

An obligation regarding real property may be enforced against a subsequent purchaser, except a purchaser in good faith for value. Stuart v. Stammen, 1999 ND 38, 590 N.W.2d 224, 1999 N.D. LEXIS 39 (N.D. 1999).

Farmland purchaser who had actual knowledge that a third party held a right of first refusal to purchase the property, and made no inquiry as to whether the other party wanted to exercise his right, was not a good faith purchaser. Stuart v. Stammen, 1999 ND 38, 590 N.W.2d 224, 1999 N.D. LEXIS 39 (N.D. 1999).

Collateral References.

Specific Performance 18-24.

71 Am. Jur. 2d, Specific Performance, §§ 190, 191.

81 C.J.S. Specific Performance, §§ 22-26.

Parties to action for specific performance of contract for conveyance of realty after death of party to the contract, 43 A.L.R.2d 938.

32-04-17. Revision of contract for fraud or mistake.

When, through fraud or mutual mistake of the parties, or a mistake of one party which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved so as to express that intention so far as it can be done without prejudice to rights acquired by third persons in good faith and for value.

Source:

Civ. C. 1877, § 2004; R.C. 1895, § 5034; R.C. 1899, § 5034; R.C. 1905, § 6619; C.L. 1913, § 7202; R.C. 1943, § 32-0417.

Derivation:

Cal. Civ. C., 3399.

Cross-References.

Reformation of contracts to express real meaning of parties, see N.D.C.C. § 9-07-05.

Notes to Decisions

Burden of Proof.

Burden of proof rests on the party who seeks reformation on the basis of mutual mistake to establish such mutual mistake by clear, satisfactory, specific and convincing evidence. Ell v. Ell, 295 N.W.2d 143, 1980 N.D. LEXIS 276 (N.D. 1980).

Party seeking reformation has burden of proving that written instrument does not accurately state what parties intended with evidence that is clear, satisfactory, specific, and convincing that there was a mutual mistake of fact. Wehner v. Schroeder, 354 N.W.2d 674, 1984 N.D. LEXIS 362 (N.D. 1984).

Consequences of Mistake.

When taxpayer’s retirement contracts were mistakenly used as collateral for a personal loan, the amounts used to pay the loan were taxed as income; taxpayer, who did not challenge the mistake or address the loan agreement 13 years earlier, could not avoid its later consequences. 277 F. Supp. 2d 1040.

Failure to Read Instrument Before Signing.

Grantors’ failure to read warranty deed prepared by an attorney before signing it did not bar them from being granted reformation to correct erroneous omission of a mineral reservation from deed where grantors’ negligence in failing to read deed did not constitute a failure to act in good faith or in accordance with reasonable standards of fair dealing. Wehner v. Schroeder, 354 N.W.2d 674, 1984 N.D. LEXIS 362 (N.D. 1984).

Good Faith Purchaser.

Party was not a good faith purchaser for value of real property, where it was put on notice about serious questions as to status of property’s title by recorded documents. City of Fargo v. D.T.L. Props., 1997 ND 109, 564 N.W.2d 274, 1997 N.D. LEXIS 103 (N.D. 1997).

Trial court erred in awarding summary judgment to plaintiff in a quiet title action against defendants because defendants did not have constructive notice of a mistake in a 1992 deed that resulted in a discrepancy in the placement of a legal boundary between the parties’ parcels of land; defendants were good faith purchasers. Farmers Union Oil Co. v. Smetana, 2009 ND 74, 764 N.W.2d 665, 2009 N.D. LEXIS 81 (N.D. 2009).

In a dispute over an oil and gas lease, it was error for a trial court to grant summary judgment upon concluding, as a matter of law, that an individual was not a bona fide purchaser, due to having constructive notice of another’s claim when recording the lease, because (1) whether the individual had notice was a question of fact, (2) deciding an issue on summary judgment was not appropriate if the court had to draw inferences or make findings on disputed facts, (3) although two corporations argued the facts were not disputed, the corporations did not agree on the inferences that could be drawn from the evidence, (4) more than one inference could reasonably be drawn from the evidence and findings of fact were required, which was not appropriate in a summary judgment proceeding, (5) whether the individual acquired property rights in good faith and for value required findings of fact about the events surrounding a transaction, and (6) a factual dispute existed about whether the individual had constructive notice when the individual acquired rights under the lease. Northern Oil & Gas, Inc. v. Creighton, 2013 ND 73, 830 N.W.2d 556, 2013 N.D. LEXIS 73 (N.D. 2013).

Mistake.

District court properly found a mutual mistake in transferring the mineral estate given, inter alia, the trust agreement's statement that the property was to be divided equally between the son and his sibling. Dixon v. Dixon, 2017 ND 174, 898 N.W.2d 706, 2017 N.D. LEXIS 175 (N.D. 2017).

In General.

Two companies that acquired oil and gas interests that belonged to a third company (“debtor”) while the debtor was in Chapter 7 bankruptcy were not barred by N.D.C.C. § 28-01-15 from seeking reformation of documents that transferred the debtor's interests because they discovered the fact that there were problems with the documents less than ten years before they sought reformation, and the court was allowed under N.D.C.C. § 9-06-07 to consider extrinsic evidence to determine the intent of the bankruptcy trustee when he sold the debtor's property, and to order reformation of the documents pursuant to N.D.C.C. § 32-04-17 to the extent they did not accurately convey interests the trustee intended to sell. 2015 Bankr. LEXIS 883.

—In General.

N.D.C.C. § 9-03-13 defines mistake for purposes of this section. Mau v. Schwan, 460 N.W.2d 131, 1990 N.D. LEXIS 180 (N.D. 1990).

In a case in which a purchaser sued sellers for reformation of a warranty deed under N.D.C.C. § 32-04-17, the trial court did not err in granting the sellers summary judgment on the purchaser’s claim for reformation based upon mistake; the written deed conformed to the sellers’ version of the facts and did not support a claim that both parties intended to say something different from what was said in the deed. Heart River Partners v. Goetzfried, 2005 ND 149, 703 N.W.2d 330, 2005 N.D. LEXIS 186 (N.D. 2005).

District court properly focused on the decedent’s intent when he executed the quitclaim deed rather than the intent of the parties to the contract for deed, and because the decedent did not include a reservation of mineral interests in the deed, the law required the district court to presume that was his intention; the son did not prove by clear and convincing evidence that a mutual mistake caused the decedent to execute the deed without the reservation of mineral interests. Spitzer v. Bartelson, 2009 ND 179, 773 N.W.2d 798, 2009 N.D. LEXIS 191 (N.D. 2009).

—Of Law.

Where a mistake of law results in the parties’ obvious failure to articulate their true and discoverable intent, reformation is available if justice and common sense require it; however, not all mistakes of law will justify reformation of a contract as ignorance of law must be distinguished, from misapprehension of law with which both parties are familiar. Hovden v. Lind, 301 N.W.2d 374, 1981 N.D. LEXIS 262 (N.D. 1981).

Dismissal of a grantor’s complaint seeking reformation of a deed was appropriate because a reservation in the deed expressly providing the grantor with the right to hunt on any or all the premises was a severance of hunting rights from the surface rights that was prohibited by statute. Furthermore, the complaint clearly alleged a mistake of law in the context of ignorance of the law, not a misapprehension of the law, for which the remedy of reformation was not available as a matter of law. Hauer v. Zerr, 2020 ND 16, 937 N.W.2d 508, 2020 N.D. LEXIS 17 (N.D. 2020).

—Unilateral.

A plaintiff failed to support a unilateral mistake under this section because there was no misrepresentation by defendant and because defendant had no prior knowledge of the mistake claimed by plaintiff. Mau v. Schwan, 460 N.W.2d 131, 1990 N.D. LEXIS 180 (N.D. 1990).

Parol Evidence.

Parol evidence is admissible in an action for reformation of a contract to establish fraud or mutual mistake as well as to show the true intentions of the parties. Ell v. Ell, 295 N.W.2d 143, 1980 N.D. LEXIS 276 (N.D. 1980).

In a reformation action, any parol evidence which tends to show a mistake or the parties’ true intent is admissible. City of Fargo v. D.T.L. Props., 1997 ND 109, 564 N.W.2d 274, 1997 N.D. LEXIS 103 (N.D. 1997).

Summary judgment was not appropriate on the grantors’ claim for reformation of a deed as there was parol evidence supporting the inference that a mistake was made; the deed was signed when the flowage easement had not yet been recorded, a mistake the grantee knew about, and there was also evidence that the grantee had told his real estate agent not to say anything about the flowage easement during the closing. Anderson v. Selby, 2005 ND 126, 700 N.W.2d 696, 2005 N.D. LEXIS 162 (N.D. 2005).

District court properly quieted title in favor of appellees because it did not err in considering extrinsic evidence to determine whether there was a mutual mistake. Goodall v. Monson, 2017 ND 92, 893 N.W.2d 774, 2017 N.D. LEXIS 93 (N.D. 2017).

Parties to Action.

Reformation of a written instrument is allowed as against original parties to instrument and all those who claim under said parties in privity, with exception of bona fide purchasers or encumbrancers for value and without notice. Wehner v. Schroeder, 354 N.W.2d 674, 1984 N.D. LEXIS 362 (N.D. 1984).

Pleaded Specifically.

Facts establishing fraud or mistake upon which reformation might be based must be specifically pleaded. Evangelical Lutheran Church v. Stanolind Oil & Gas Co., 251 F.2d 412, 1958 U.S. App. LEXIS 5386 (8th Cir. N.D. 1958).

Purchaser with Constructive Notice of Claim.

Purchaser of property had constructive notice of possible claim by plaintiff regarding mineral interests, and was therefore not a good faith purchaser for value, where a search of title abstract should have disclosed discrepancy over mineral interests between a recorded contract for deed and a recorded warranty deed; therefore, good faith purchaser provision of this section did not bar plaintiff from seeking reformation of recorded instruments. Wehner v. Schroeder, 335 N.W.2d 563, 1983 N.D. LEXIS 340 (N.D. 1983).

—Question of Fact.

A factual dispute existed as to whether partners in partnership had notice of facts which would provoke a prudent person to make further inquiry about its rent obligation under ground lease purchased by partnership, so that district court erred in concluding, as a matter of law, that partnership had constructive notice of the mutual mistake in lease and, therefore, was not a good faith purchaser. Diocese of Bismarck Trust v. Ramada, Inc., 553 N.W.2d 760, 1996 N.D. LEXIS 214 (N.D. 1996).

Reformation or Rescission.

Where a mistake is made in a contract, equity will either reform or rescind the contract as circumstances may require. Benesh v. Travelers' Ins. Co., 14 N.D. 39, 103 N.W. 405, 1905 N.D. LEXIS 17 (N.D. 1905).

While fraud is a ground for reformation of written instruments, fraud perpetrated to induce a party to enter into the agreement itself is not a ground for its reformation, but is a ground for its rescission. Striegel v. Dakota Hills, 365 N.W.2d 491, 1985 N.D. LEXIS 282 (N.D. 1985).

The trial court had no authority to order reamortization of the loan under the guise of reformation, especially where the borrower had not asserted any grounds to support reformation of a written instrument. Federal Land Bank v. Overboe, 404 N.W.2d 445, 1987 N.D. LEXIS 296 (N.D. 1987).

A ten-acre shortfall in a deed was a disadvantage to defendant, not an advantage; therefore, it was not the kind of mistake which warranted reformation for plaintiff, the grantor, as “a party aggrieved.” Mau v. Schwan, 460 N.W.2d 131, 1990 N.D. LEXIS 180 (N.D. 1990).

Where party affirmed contract and continued to rely on some of its provisions, his counterclaim for fraud was properly dismissed by summary judgment, because fraud perpetrated to induce a party to enter into the agreement is not a ground for its reformation, but is a ground for rescission, and the party did not seek rescission. Earthworks v. Sehn, 553 N.W.2d 490, 1996 N.D. LEXIS 205 (N.D. 1996).

District court properly granted summary judgment under Fed.R.Civ.P. 56 in favor of the United States in a taxpayer’s action seeking a refund of taxes paid in response to the Internal Revenue Service’s (IRS) assessment of a tax underpayment under 26 USCS § 72(p)(1); although the taxpayer claimed that a collateral assignment of annuity contracts was void because it was the product of mutual mistake on behalf of the taxpayer and a bank, the IRS properly treated the assignment as a taxable event based on the realities of the transaction; the taxpayer never challenged the legality of the assignment through proceedings authorized by N.D.C.C. §§ 32-04-17 to 32-04-22, and the taxpayer enjoyed the benefits of using the assignment as collateral for a loan. 366 F.3d 622.

District court did not abuse its discretion in concluding that the relatives’ proposed amended complaint for reformation was futile, N.D.R.Civ.P. 15(a), as they did not present sufficient evidence to support a reformation claim, N.D.C.C. § 32-04-17; the heirs’ summary judgment motion was properly granted as the relatives failed to demonstrate the existence of a disputed material fact. Johnson v. Hovland, 2011 ND 64, 795 N.W.2d 294, 2011 N.D. LEXIS 44 (N.D. 2011).

When appellant grantors claimed an interest in scoria under the reservation language in a warranty deed, the district court did not abuse its discretion in denying appellants’ motion to amend their complaint to assert a cause of action for reformation of the warranty deed under N.D.C.C. § 32-04-17 because the proposed amendment would be futile. Appellants failed to provide substantial evidence of the parties’ mutual intention to reserve interest in scoria. George v. Veeder, 2012 ND 186, 820 N.W.2d 731, 2012 N.D. LEXIS 189 (N.D. 2012).

District court did not err in granting summary judgment dismissing the relatives’ counterclaim for reformation and in quieting title to the minerals in the family; the proof offered by the relatives in support of their reformation claim fell short of the clear, satisfactory, specific and convincing evidence they needed in order to show that the parties to the documents in question intended to say something different from what was actually said in those documents. Arndt v. Maki, 2012 ND 55, 813 N.W.2d 564, 2012 N.D. LEXIS 53 (N.D. 2012).

District court did not err in reforming a warranty deed under and quieting title in the disputed land to the buyers because, while the original owner testified she did not intend to convey land below the water's edge of a lake to the intervening owners, circumstantial evidence in the record--including listing agreements, advertisements, and the testimony of the property surveyor and the attorney who drafted the deeds--supported a contrary finding. Freidig v. Weed, 2015 ND 215, 868 N.W.2d 546, 2015 N.D. LEXIS 223 (N.D. 2015).

District court did not err in determining the ownership of the property at issue because its findings that an estate's failed to meet its burden of proving fraud or mistake were not clearly erroneous where the primary purpose of the estate's action was to reform a deed and determine ownership of property the estate alleged it owned, the statute of limitations was not applicable to the estate's quiet title and reformation claim, the estate's appellate brief did not attack the district court's findings of fact on fraud, and the evidence did not establish whether the son and the father's estate intended to change the personal representative's deed or whether the deed was fraudulently or mistakenly altered. Vaage v. State (In re Estate of Vaage), 2016 ND 32, 875 N.W.2d 527, 2016 N.D. LEXIS 22 (N.D. 2016).

District court properly reformed the mineral deed naming only one brother as the grantee where it credited the non-named brother's testimony that a mutual mistake was made, and the deed's reference to joint tenants when only one grantee was named was an obvious error that put the purchasers on inquiry under N.D.C.C. § 1-01-25, thereby depriving them of good faith purchaser status. Fredericks v. Fredericks, 2016 ND 234, 888 N.W.2d 177, 2016 N.D. LEXIS 235 (N.D. 2016).

District court's findings supporting reformation of a deed were not clearly erroneous because there was clear evidence the grantors intended to transfer 508.26 mineral acres rather than the fractional interest as shown on the deed; the contract and receipt received as evidence contained language to show that the intent of parties to the contract was to transfer “an undivided 508.26 mineral acres” in the real estate later described in the deed. Goodall v. Monson, 2017 ND 92, 893 N.W.2d 774, 2017 N.D. LEXIS 93 (N.D. 2017).

District court did not err in denying a rural water district reformation of two leases on land because there was no mutual mistake in the drafting of leases; the parties engaged in a mutually negotiated, arms-length, commercial transaction, and the district court weighed the evidence, found the commercial lease contracts clear and unambiguous, and found the district did not meet its burden of clear and convincing evidence for reformation. Motter v. Traill Rural Water Dist., 2017 ND 267, 903 N.W.2d 725, 2017 N.D. LEXIS 276 (N.D. 2017).

In an appeal from a judgment dismissing plaintiffs’ action to reform warranty deeds and quiet title in themselves to certain property, the Supreme Court could not determine whether the district court correctly applied the law. In the absence of any correct statement of how the law applied to this case, the Supreme Court was compelled to remand the case to the district court. Schindler v. Wageman, 2019 ND 41, 923 N.W.2d 507, 2019 N.D. LEXIS 49 (N.D. 2019).

Settlement Agreement

Trial court did not abuse its discretion in refusing to reform parties’ settlement agreement in a class action suit because the calculation of the award, and the inclusion of a specific number in the denominator of the settlement formula used to determine payments to individual claimants signaled intense negotiations and was deliberate, not a mistake; the number used in the calculations was based on the best information available at the time and the parties’ correspondence evidenced their knowledge that the number was an approximation and could be higher or lower than what was inserted in the formula. Ritter, Laber & Assocs. v. Koch Oil, Inc., 2007 ND 163, 740 N.W.2d 67, 2007 N.D. LEXIS 168 (N.D. 2007).

Statute of Limitations.

A reformation of contract action on the basis of mutual mistake accrues, and the statute of limitations begins to run, not at the time the instrument in question is executed, but at the time the facts which constitute the mistake and form the basis for reformation have been, or in the exercise of reasonable diligence should have been, discovered by the party applying for relief. Ell v. Ell, 295 N.W.2d 143, 1980 N.D. LEXIS 276 (N.D. 1980).

Collateral References.

Reformation of Instruments 15-21.

66 Am. Jur. 2d, Reformation of Instruments, §§ 11-27.

76 C.J.S. Reformation of Instruments, §§ 28-46.

Statute of limitations governing action to reform instrument, 36 A.L.R.2d 687.

Third persons, right to reformation of contract or instrument as affected by intervening rights of, 79 A.L.R.2d 1180.

Negligence in executing contract as affecting right to have it reformed, 81 A.L.R.2d 7.

32-04-18. Intention to make equitable agreement presumed.

For the purpose of revising a contract, it must be presumed that all the parties thereto intended to make an equitable and conscientious agreement.

Source:

Civ. C. 1877, § 2005; R.C. 1895, § 5035; R.C. 1899, § 5035; R.C. 1905, § 6620; C.L. 1913, § 7203; R.C. 1943, § 32-0418.

Derivation:

Cal. Civ. C., 3400.

32-04-19. Court may inquire what instrument was intended to mean.

In revising a written instrument, the court may inquire what the instrument was intended to mean and what were intended to be its legal consequences, and it is not confined to an inquiry as to what the language of the instrument was intended to be.

Source:

Civ. C. 1877, § 2006; R.C. 1895, § 5036; R.C. 1899, § 5036; R.C. 1905, § 6621; C.L. 1913, § 7204; R.C. 1943, § 32-0419.

Derivation:

Cal. Civ. C., 3401.

Notes to Decisions

Reformation.

Dismissal of a grantor’s complaint seeking reformation of a deed was appropriate because a reservation in the deed expressly providing the grantor with the right to hunt on any or all the premises was a severance of hunting rights from the surface rights that was prohibited by statute. Furthermore, the complaint clearly alleged a mistake of law in the context of ignorance of the law, not a misapprehension of the law, for which the remedy of reformation was not available as a matter of law. Hauer v. Zerr, 2020 ND 16, 937 N.W.2d 508, 2020 N.D. LEXIS 17 (N.D. 2020).

32-04-20. Contract first revised then enforced.

A contract may be revised first and then specifically enforced.

Source:

Civ. C. 1877, § 2007; R.C. 1895, § 5037; R.C. 1899, § 5037; R.C. 1905, § 6622; C.L. 1913, § 7205; R.C. 1943, § 32-0420.

Derivation:

Cal. Civ. C., 3402.

32-04-21. When rescission of contract adjudged.

The rescission of a written contract may be adjudged on the application of the party aggrieved:

  1. In any of the cases mentioned in section 9-09-02;
  2. When the contract is unlawful for causes not apparent upon its face and when the parties were not equally in fault; or
  3. When the public interest will be prejudiced by permitting it to stand.

Source:

Civ. C. 1877, § 2008; R.C. 1895, § 5038; R.C. 1899, § 5038; R.C. 1905, § 6623; C.L. 1913, § 7206; R.C. 1943, § 32-0421.

Derivation:

Cal. Civ. C., 3406.

Cross-References.

Rescission of contract for damages for personal injuries, see N.D.C.C. § 9-08-09.

Notes to Decisions

Fraud.

The specific relief of rescission of a written contract may be adjudged if the consent of the party rescinding was obtained through fraud, provided that he acts promptly upon discovering the facts which entitle him to rescind, if he is free from duress, menace, undue influence, or disability and is aware of his right to rescind. Lanz v. Naddy, 82 N.W.2d 809, 1957 N.D. LEXIS 119 (N.D. 1957).

Where the vice president of the bank fraudulently induced a debtor to enter into a $250,000 loan by making false statements, the district court did not abuse its discretion in granting the debtor equitable rescission of the loan under N.D.C.C. § 32-04-21. The bank could not look to the debtor for repayment of the loan, because he neither received the loan proceeds nor received the promised collateral for the obligation. Am. Bank Ctr. v. Wiest, 2010 ND 251, 793 N.W.2d 172, 2010 N.D. LEXIS 255 (N.D. 2010).

Jury Trial.

A rescission action under N.D.C.C. §§ 32-04-21 through 32-04-23 is a suit in equity, for which a trial by jury is not available. Therefore, an action by house purchaser seeking to cancel the contract based on the seller’s fraudulent misrepresentations as to the house’s structural integrity and water problems was equitable in nature and trial judge did not err in denying plaintiff’s motion for a jury trial. Barker v. Ness, 1998 ND 223, 587 N.W.2d 183, 1998 N.D. LEXIS 228 (N.D. 1998).

Where property owners seeking to rescind real estate sales contract on the basis of fraud made no offer to restore the purchase price before intervening in a partition action pertaining to the property, the claim was an equitable one, and thus the claimants had no right to a jury trial. Murphy v. Murphy, 1999 ND 118, 595 N.W.2d 571, 1999 N.D. LEXIS 110 (N.D. 1999).

Misdescription of Land.

Where a contract describes more land than was intended to be included therein, equity will rescind or reform the contract. Benesh v. Travelers' Ins. Co., 14 N.D. 39, 103 N.W. 405, 1905 N.D. LEXIS 17 (N.D. 1905).

Mistake of Fact.

In a contract action based on the sale of a vintage car, when the trial court concluded that the parties’ consent to the agreement was given under a material mistake of fact about the engine and ordered the parties restored to their pre-contractual position, the court effectively granted the parties equitable rescission of the contract. Romanyshyn v. Fredericks, 1999 ND 128, 597 N.W.2d 420, 1999 N.D. LEXIS 148 (N.D. 1999).

Mistake of Law.

Vendor was not entitled to rescind land sale contract with mineral reservation on the basis of lack of free and informed consent due to a mistake of law concerning the procedure to reserve the minerals where the mistake of law did not affect the substance of the vendor’s consent to the contract, but simply frustrated his attempt to reserve all minerals. Hovden v. Lind, 301 N.W.2d 374, 1981 N.D. LEXIS 262 (N.D. 1981).

Public Utilities.

Plaintiff, a customer for steam heat service, stated a cause of action for rescission of heating contract under subsection 2 of this section where his complaint clearly alleged the payment of money in innocent and mistaken reliance upon an unlawful contract, that plaintiff was not equally in the wrong with the defendant, and that the contract was unlawful for causes which were not apparent upon its face. Lyons v. Otter Tail Power Co., 70 N.D. 681, 297 N.W. 691, 1941 N.D. LEXIS 217 (N.D. 1941).

Collateral References.

Contracts 249-274.

17A Am. Jur. 2d, Contracts, §§ 524 et seq.

17A C.J.S. Contracts, §§ 456-499.

Contracting party’s right of redress for fraud as affected by his own breach of the contract before discovering the fraud, 13 A.L.R.2d 1248.

False representations as to income, profits, or productivity of property as fraud, 27 A.L.R.2d 14.

What constitutes reservation of right to rescind contract, as against third party beneficiary, 44 A.L.R.2d 1270.

Conflict of laws in determining whether facts and circumstances operate to terminate, breach, rescind, or repudiate a contract, 50 A.L.R.2d 254.

Executors: asserted right to rescission or cancellation of contract with decedent as claim which must be presented to his personal representative, 73 A.L.R.2d 883.

Mutual rescission or release of contract as affecting rights of third-party beneficiary, 97 A.L.R.2d 1262.

Comment Note.—Amount of attorneys’ compensation in absence of contract or statute fixing amount, 57 A.L.R.3d 475.

Amount of attorneys’ compensation in matters involving guardianship and trusts, 57 A.L.R.3d 550.

Amount of attorneys’ fees in tort actions, 57 A.L.R.3d 584.

Amount of attorneys’ compensation in proceedings involving wills and administration of decedents’ estates, 58 A.L.R.3d 317.

Excessiveness or adequacy of attorneys’ fees in matters involving real estate—modern cases, 10 A.L.R.5th 448.

Excessiveness or adequacy of attorneys’ fees in domestic relations cases, 17 A.L.R.5th 366.

Excessiveness or inadequacy of attorneys fees in matters involving commercial and general business activities, 23 A.L.R.5th 241.

Calculations of attorneys’ fees under Federal Tort Claims Act—28 USCS sec. 2678, 86 A.L.R. Fed. 866.

32-04-22. Rescission not adjudged for mere mistake.

Rescission cannot be adjudged for mere mistake, unless the party against whom it is adjudged can be restored to substantially the same condition as if the contract had not been made.

Source:

Civ. C. 1877, § 2009; R.C. 1895, § 5039; R.C. 1899, § 5039; R.C. 1905, § 6624; C.L. 1913, § 7207; R.C. 1943, § 32-0422.

Derivation:

Cal. Civ. C., 3407.

Notes to Decisions

Exchange of Value.

Rescission based upon mutual mistake will be allowed when the party opposing rescission has not demonstrated that he has parted with anything of value which should be restored to him. Dardis v. Eddy Bros., 223 N.W.2d 674, 1974 N.D. LEXIS 174 (N.D. 1974).

32-04-23. Compensation may be required.

On adjudging the rescission of a contract, the court may require the party to whom such relief is granted to make any compensation to the other which justice may require.

Source:

Civ. C. 1877, § 2010; R.C. 1895, § 5040; R.C. 1899, § 5040; R.C. 1905, § 6625; C.L. 1913, § 7208; R.C. 1943, § 32-0423.

Derivation:

Cal. Civ. C., 3408.

Notes to Decisions

Determination of Amount.

The court has the power to determine the amount which is owing or which must be paid by way of compensation by one who maintains an action for cancellation of a contract to the one against whom it is brought. Donovan v. Dickson, 37 N.D. 404, 164 N.W. 27, 1917 N.D. LEXIS 114 (N.D. 1917).

Improvements on Land.

Where specific performance was denied and the contract was canceled by the court, reimbursement should be made for the money expended in improvements upon the land in reliance upon the contract, at least to the extent of the increased value of the land resulting from the improvements. Sand v. Red River Nat'l Bank & Trust Co., 224 N.W.2d 375, 1974 N.D. LEXIS 132 (N.D. 1974).

No Compensation Required.

Where the vice president of the bank fraudulently induced a debtor to enter into a $250,000 loan by making false statements, the district court did not abuse its discretion in granting the debtor equitable rescission of the loan under N.D.C.C. § 32-04-23. The bank could not look to the debtor for repayment of the loan, because he neither received the loan proceeds nor received the promised collateral for the obligation. Am. Bank Ctr. v. Wiest, 2010 ND 251, 793 N.W.2d 172, 2010 N.D. LEXIS 255 (N.D. 2010).

Return to Precontractual Position.

The principle that both parties must be restored to their pre-contractual positions applies to equitable rescission actions. Therefore, in an equitable rescission action to cancel contract for purchase of house, trial court did not err in ordering purchaser to remit to the seller the rental income derived from the house. Barker v. Ness, 1998 ND 223, 587 N.W.2d 183, 1998 N.D. LEXIS 228 (N.D. 1998).

32-04-24. When cancellation of instrument adjudged.

When a written instrument, or the record thereof, may cause injury to a person against whom such instrument is void or voidable, such instrument, in an action brought by the party injured, may be adjudged void and the same ordered to be delivered up for cancellation and the record thereof canceled, whether or not extrinsic evidence is necessary to show its invalidity.

Source:

Civ. C. 1877, § 2011; R.C. 1895, § 5041; R.C. 1899, § 5041; R.C. 1905, § 6626; C.L. 1913, § 7209; R.C. 1943, § 32-0424.

Derivation:

Cal. Civ. C., 3412.

Notes to Decisions

Cloud upon Title.

A complaint to remove a cloud from plaintiff’s title and cancel a fraudulent deed should describe the deed in such a manner that it can be identified for cancellation by the officer of the court. Nation v. Cameron, 11 N.W. 525, 2 Dakota 347, 1880 Dakota LEXIS 11 (Dakota 1880).

An instrument is not a cloud upon a title if its invalidity appears on its face. Morris v. McKnight, 1 N.D. 266, 47 N.W. 375, 1890 N.D. LEXIS 34 (N.D. 1890).

Denial of Specific Performance.

A denial of specific performance means the contract will not be enforced in equity, but cancellation or rescission of the contract simultaneously with denial of specific performance means that it will not be enforced in equity or in law; the standard for granting cancellation is more strict than that for denying specific performance. Sand v. Red River Nat'l Bank & Trust Co., 224 N.W.2d 375, 1974 N.D. LEXIS 132 (N.D. 1974).

Lis Pendens.

Because defendant's complaint in tribal court was not one affecting the title to real property, as it sought only a money judgment, and a lis pendens for that action was not entitled to be recorded, the court concluded that the improperly recorded lis pendens was subject to cancellation under this section, and therefore the district court erred by dismissing plaintiff's application to cancel the lis pendens. Conrad v. Wilkinson, 2017 ND 212, 901 N.W.2d 348, 2017 N.D. LEXIS 214 (N.D. 2017).

Collateral References.

Vendor’s obligation to disclose to purchaser of land presence of contamination from hazardous substances or wastes, 12 A.L.R.5th 630.

32-04-25. Partial cancellation.

When an instrument is evidence of different rights or obligations, it may be canceled in part and allowed to stand for the residue.

Source:

Civ. C. 1877, § 2013; R.C. 1895, § 5042; R.C. 1899, § 5042; R.C. 1905, § 6627; C.L. 1913, § 7210; R.C. 1943, § 32-0425.

Derivation:

Cal. Civ. C., 3414.

CHAPTER 32-05 Preventive Relief

32-05-01. When preventive relief given.

Preventive relief may be given in the cases specified in this chapter and in no other cases.

Source:

Civ. C. 1877, § 1987; R.C. 1895, § 5017; R.C. 1899, § 5017; R.C. 1905, § 6602; C.L. 1913, § 7185; R.C. 1943, § 32-0501.

Derivation:

Cal. Civ. C., 3366.

Cross-References.

Labor disputes and court proceedings therein, see N.D.C.C. ch. 34-08.

32-05-02. Preventive relief not given to enforce penal law.

Preventive relief cannot be granted to enforce a penal law, except in a case of nuisance, nor to enforce a penalty or forfeiture in any case.

Source:

Civ. C. 1877, § 1990; R.C. 1895, § 5020; R.C. 1899, § 5020; R.C. 1905, § 6605; C.L. 1913, § 7188; R.C. 1943, § 32-0502.

Derivation:

Cal. Civ. C., 3369.

Notes to Decisions

In General.

Equity has no jurisdiction to restrain the commission of crimes, and an injunction may not issue for the prevention of criminal acts unconnected with violation of legal rights. Fargo Women's Health Org. v. Lambs of Christ, 488 N.W.2d 401, 1992 N.D. LEXIS 183 (N.D. 1992).

Interference with Legal Rights.

When the acts sought to be enjoined interfere with legal rights, the court’s power to issue an injunction is not destroyed because the acts are punishable as a crime. In such a case, the equitable powers of the court are not put forth to enjoin the commission of a crime, although that may incidentally result; they are put forth to protect legal rights against invasion by acts which, if committed, would cause injury for which the ordinary remedies at law would not afford adequate relief. Fargo Women's Health Org. v. Lambs of Christ, 488 N.W.2d 401, 1992 N.D. LEXIS 183 (N.D. 1992).

Small Loan Business.

State may enjoin conduct of a usurious small loan business to prevent acts injurious to the public welfare where the remedy at law or by criminal prosecution would be inadequate. State ex rel. Burgum v. Hooker, 87 N.W.2d 337, 1957 N.D. LEXIS 182 (N.D. 1957).

Collateral References.

Injunction 102, 105.

42 Am. Jur. 2d, Injunctions, §§ 175 et seq.

43A C.J.S. Injunctions, §§ 276-278.

Official oppression, injunction against acts constituting offense of, 83 A.L.R.2d 1007, 1016.

Validity, construction, and effect of “Sunday closing” or “blue” laws—modern status, 10 A.L.R.4th 246.

32-05-03. How preventive relief given.

Preventive relief consists in prohibiting a party from doing that which ought not to be done. It is granted by injunction, temporary or final.

Source:

Civ. C. 1877, §§ 1989, 2014; R.C. 1895, §§ 5019, 5043; R.C. 1899, §§ 5019, 5043; R.C. 1905, §§ 6604, 6628; C.L. 1913, §§ 7187, 7211; R.C. 1943, § 32-0503.

Derivation:

Cal. Civ. C., 3368, 3420.

Collateral References.

Injunction 1-8.

42 Am. Jur. 2d, Injunctions, §§ 2-11.

43 C.J.S. Injunctions, §§ 1-18.

32-05-04. When final injunction granted.

Except when otherwise provided by this chapter, a final injunction may be granted to prevent the breach of an obligation existing in favor of the applicant:

  1. When pecuniary compensation would not afford adequate relief;
  2. When it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief;
  3. When the restraint is necessary to prevent a multiplicity of judicial proceedings; or
  4. When the obligation arises from a trust.

Source:

Civ. C. 1877, § 2016; R.C. 1895, § 5045; R.C. 1899, § 5045; R.C. 1905, § 6630; C.L. 1913, § 7213; R.C. 1943, § 32-0504.

Derivation:

Cal. Civ. C., 3422.

Cross-References.

Use of injunction in labor disputes, see N.D.C.C. ch. 34-08.

Notes to Decisions

Damages Inadequate Remedy.

This section, authorizes a final injunction to prevent the breach of an obligation when damages are insufficient to afford adequate relief. Farm Credit Bank v. Brakke, 483 N.W.2d 167, 1992 N.D. LEXIS 69 (N.D. 1992).

Disputed Terms of Sale.

Court had no authority, by an injunction, to take from defendant property clearly his, and to which he held title, because there was a dispute between the parties as to the fulfillment of the terms of the contract of sale. FARMERS UNION OIL CO. v. KILGORE, 71 N.D. 199, 299 N.W. 318, 1941 N.D. LEXIS 154 (N.D. 1941).

Employee Soliciting Employer’s Clients.

Accounting firm was entitled to injunctive relief to prevent former employee from performing any audit or other accounting or booking services and from accepting any compensation for such services from the firm’s clients where the former employee had solicited the firm’s clients for his own behalf while he was still employed with the firm and before quitting the firm to start his own accounting business. Biever, Drees & Nordell v. Coutts, 305 N.W.2d 33, 1981 N.D. LEXIS 267 (N.D. 1981).

Injunctive Relief.
—Improper.

Where a hospital followed its bylaws, which authorized an interim suspension of a doctor’s privileges during an investigation upon the executive committee finding it was necessary to prevent potential harm to patients, the trial court abused its discretion when it enjoined the suspension. Magrinat v. Trinity Hosp., 540 N.W.2d 625, 1995 N.D. LEXIS 229 (N.D. 1995).

Peaceable Use of Real Property.

Injunctive relief is appropriate to prevent a threatened disturbance in the peaceable use, enjoyment, and possession of real property. Farm Credit Bank v. Brakke, 483 N.W.2d 167, 1992 N.D. LEXIS 69 (N.D. 1992).

Preventive Relief.

Preventive relief may be given by injunction when pecuniary compensation is not an adequate remedy; when it would be extremely difficult to ascertain the amount of compensation; when restraint is necessary to prevent a multiplicity of suits. Strobeck v. McWilliams, 42 N.D. 30, 171 N.W. 865, 1919 N.D. LEXIS 115 (N.D. 1919); Northern Pac. Ry. v. Northern Reo Co., 64 N.D. 68, 250 N.W. 329 (1934).

In an action by the purchaser for preventive relief by injunction, to restrain a seller from doing that which ought not to be done, viz., a wrongful interference with the possession, use, and enjoyment of property contracted for, it is not material whether the legal title to the goods is retained by the seller. Mevorah v. Goodman, 65 N.W.2d 278, 1954 N.D. LEXIS 85, 1954 N.D. LEXIS 86 (N.D. 1954).

Where a remedy for damages would be insufficient because it would be extremely difficult to ascertain the amount that would afford adequate relief, this section authorizes a final injunction. Gunsch v. Gunsch, 69 N.W.2d 739, 1954 N.D. LEXIS 121, 1955 N.D. LEXIS 101 (N.D. 1954).

Trespass.

A court of equity will protect the rightful claimant’s right to possession against a trespasser, and when he has established his legal right and the fact of its violation, the rightful claimant is in general entitled to final injunction to prevent the recurrence of the trespass. Gunsch v. Gunsch, 69 N.W.2d 739, 1954 N.D. LEXIS 121, 1955 N.D. LEXIS 101 (N.D. 1954).

Trust Obligation.

A final injunction may be granted to prevent the breach of an obligation existing in favor of the applicant when the obligation arises from a trust. Mevorah v. Goodman, 65 N.W.2d 278, 1954 N.D. LEXIS 85, 1954 N.D. LEXIS 86 (N.D. 1954).

Collateral References.

Injunction 14-19, 189, 190.

42 Am. Jur. 2d, Injunctions, §§ 12 et seq.

43 C.J.S. Injunctions, §§ 27, 33, 48-68.

Elections: canvassing votes and declaring result of election, power to enjoin, 1 A.L.R.2d 588.

Custody of child: removal of child from state in violation of injunction order as affecting jurisdiction of courts of another state to award custody, 4 A.L.R.2d 7.

Injunction by state court against action in court of another state, 6 A.L.R.2d 896.

Public utility rates, adequacy, as regards right to injunction, of other remedy for review of order fixing, 8 A.L.R.2d 839.

Liquidated damages, provision for, in contract for cooperative marketing of farm products as affecting right to injunction, 12 A.L.R.2d 130.

Unemployment compensation: declaratory relief with respect to unemployment compensation as within statute forbidding injunctive relief, 14 A.L.R.2d 826.

Contract, right to injunction against inducing breach of, as affected by remedy at law, 26 A.L.R.2d 1227.

Breach of contract: injunction against procuring breach of contract as affected by remedy at law, 26 A.L.R.2d 1227.

Encroachments by adjoining landowner, mandatory injunction to compel removal of, 28 A.L.R.2d 679.

Labor relations: state’s power to enjoin violation of collective labor contract as affected by federal labor relations acts, 32 A.L.R.2d 829.

Public officer, injunction as remedy against removal of, 34 A.L.R.2d 554.

Zoning regulations, remedies to compel municipal officials to enforce, 35 A.L.R.2d 1135, 1136.

Parking vehicles on private way, injunction against, 37 A.L.R.2d 944.

Business names: injunction to prevent use of one’s own name for business purposes to detriment of another using the same or a similar name, in absence of self-imposed restraint, 44 A.L.R.2d 1156.

Defamation: injunction as remedy against defamation of person as affected by legal remedy, 47 A.L.R.2d 715, 724.

Insurance injunction to prevent insurer from settling suit against wrongdoer to detriment of insurer, 51 A.L.R.2d 697, 726.

Other state or country, injunction against enforcement of judgment of, 54 A.L.R.2d 1240.

Water rights: injunction as affected by relative riparian or littoral rights respecting the removal of waters from a natural, private, nonnavigable lake, 54 A.L.R.2d 1450.

Fishing, boating, bathing, or the like in inland lakes, injunction as remedy with respect to rights of, 57 A.L.R.2d 569, 590.

Trespass: injunction against repeated or continuing trespass on ground of adequacy of legal remedy, 60 A.L.R.2d 310.

Trade secrets: wording injunction in terms avoiding disclosure of trade secret or the like, 62 A.L.R.2d 509, 530.

Copyright of telephone directory, injunction against infringement of, 63 A.L.R.2d 1096, 1103.

Taxation: financial hardship or inability to pay tax as rendering inapplicable statute denying remedy by injunction against assessment or collection of tax, 65 A.L.R.2d 550.

Arbitration: injunction against arbitration proceedings, prior to award, on ground of interest, bias, prejudice, collusion, or fraud, 65 A.L.R.2d 755, 757.

Sewerage connection, right of private sewerage system owner to mandatory injunction for removal of unauthorized, 76 A.L.R.2d 1329.

Timber: injunction to prevent interference with operations under standing tree contract providing that trees to be cut and order of cutting shall be selected by seller, 79 A.L.R.2d 1243.

Usury: practice of exacting usury as ground for injunction, 83 A.L.R.2d 848.

Crops: injunctive relief as to contract between grower of vegetable or fruit crops and purchasing processor, packer, or canner, 87 A.L.R.2d 732, 779.

Eminent domain, denial of injunction against exercise of power of, because of adequate remedy at law, 93 A.L.R.2d 465.

Absentee Voters’ Laws, injunction proceedings under, 97 A.L.R.2d 257.

Infant’s employment contract, enforceability of covenant not to compete in, 17 A.L.R.3d 863.

Trade secrets: propriety of permanently enjoining one guilty of unauthorized use of trade secret from engaging in sale or manufacture of device in question, 38 A.L.R.3d 572.

Diversion of water: propriety of injunctive relief against diversion of water by municipal corporation or public utility, 42 A.L.R.3d 426.

Pollution control: preliminary mandatory injunction to prevent, correct, or reduce effects of polluting practices, 49 A.L.R.3d 1239.

Use of “family name” by corporation as unfair competition, 72 A.L.R.3d 8.

Liability for interference with invalid or unenforceable contract, 96 A.L.R.3d 1294.

Punitive damages for interference with contract or business relationship, 44 A.L.R.4th 1078.

Applicability of statute of limitations or doctrine of laches to proceeding to revoke or suspend license to preactice medicine, 51 A.L.R.4th 1147.

Encroachment of trees, shrubbery, or other vegetation across boundary line, 65 A.L.R.4th 603.

Law Reviews.

Summary of North Dakota Supreme Court decisions on Appeal and Error, 72 N.D. L. Rev. 768 (1996).

32-05-05. When injunction not granted.

An injunction cannot be granted:

  1. To stay a judicial proceeding pending at the commencement of the action in which the injunction is demanded, unless such restraint is necessary to prevent a multiplicity of such proceedings.
  2. To stay proceedings in a court of the United States.
  3. To stay proceedings in any other state upon a judgment of a court of that state.
  4. To prevent the execution of a public statute by officers of the law for the public benefit.
  5. To prevent the breach of a contract, the performance of which could not be specifically enforced.
  6. To prevent the exercise of a public or private office in a lawful manner by the person in possession.
  7. To prevent a legislative act by a municipal corporation.

Source:

Civ. C. 1877, § 2017; R.C. 1895, § 5046; R.C. 1899, § 5046; S.L. 1901, ch. 108, § 1; R.C. 1905, § 6631; C.L. 1913, § 7214; R.C. 1943, § 32-0505.

Derivation:

Cal. Civ. C., 3423.

Cross-References.

Restrictions on granting preventive relief by courts in labor disputes, see N.D.C.C. § 34-08-03.

Notes to Decisions

Breach of Contract.

A final injunction, when authorized, may be granted to restrain the breach of a contract, unless it is one the performance of which could not be specifically enforced. Mevorah v. Goodman, 65 N.W.2d 278, 1954 N.D. LEXIS 85, 1954 N.D. LEXIS 86 (N.D. 1954).

Officers of the Law.

The term “officers of the law” is synonymous with “peace officers”. Bartels N. Oil Co. v. Jackman, 29 N.D. 236, 150 N.W. 576, 1915 N.D. LEXIS 7 (N.D. 1915).

Public Officers.

The district court may entertain jurisdiction of an action to enjoin the pure food commissioner from destroying plaintiff’s business. State ex rel. Ladd v. District Court, 17 N.D. 285, 115 N.W. 675, 1908 N.D. LEXIS 28 (N.D. 1908).

Issuance in taxpayers’ suit of restraining order to enjoin state treasurer from depositing state funds, and funds of state institutions, in the Bank of North Dakota was error. State ex rel. Lemke v. District Court, 49 N.D. 27, 186 N.W. 381, 1921 N.D. LEXIS 133 (N.D. 1921).

Injunctional order enjoining state officials from enforcing criminal judgment was erroneous. State ex rel. Shafer v. Lowe, 54 N.D. 637, 210 N.W. 501, 1926 N.D. LEXIS 72 (N.D. 1926), overruled in part, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632, 1994 N.D. LEXIS 202 (N.D. 1994).

Sale of Public Utility.

Where defendant owner and operator of an electric plant sold plant to plaintiff pursuant to agreement, delivering a bill of sale with warranty upon plaintiff’s payment of agreed purchase price, but the defendant failed to obtain authorization from the public service commission, the trial court properly enjoined defendant from interfering with plaintiff’s possession of the property. Otter Tail Power Co. v. Clark, 59 N.D. 320, 229 N.W. 915, 1930 N.D. LEXIS 145 (N.D. 1930).

Success on Merits.

In a case where injunctive relief was sought after the closing of a housing facility, there was no likelihood of success on the merits because argument that the decision was not rational addressed the wisdom and propriety of the legislative decision, and it was not shown why an appeal to the district court was not an adequate legal remedy to resolve this claim. Black Gold OilField Servs., LLC v. City of Williston, 2016 ND 30, 875 N.W.2d 515, 2016 N.D. LEXIS 35 (N.D. 2016).

Teacher’s Employment Contract.

Teacher employed by a private institution has no right to specific enforcement or injunctive relief to obtain reinstatement of her teaching position for alleged wrongful termination or to prevent a breach of her employment contract. Schauer v. Jamestown College, 323 N.W.2d 114, 1982 N.D. LEXIS 369 (N.D. 1982).

Zoning.

Declaratory and injunctive relief are appropriate if a municipality fails to comply with the statutory procedures for annexation and zoning, but may not be used to test the wisdom of an annexation or zoning decision, which is a legislative act. Frey v. City of Jamestown, 548 N.W.2d 784, 1996 N.D. LEXIS 157 (N.D. 1996).

In challenging a city’s decision to reject his petition for rezoning and annexation of his property, property owner argued that the city should have given greater credence to its comprehensive development plan and that the city gave too much credence to the complaints and concerns of area residents in reaching its decision; however, all of these factors went to the wisdom, propriety, and correctness of the decision, rather than compliance with the statutory procedures for annexation, and could not be challenged by seeking declaratory or injunctive relief. Braunagel v. City of Devils Lake, 2001 ND 118, 629 N.W.2d 567, 2001 N.D. LEXIS 141 (N.D. 2001).

CHAPTER 32-06 Injunction

32-06-01. Injunction by order.

An injunction by order may be made by the court in which an action is brought, or by a judge thereof, in the cases provided in section 32-06-02, and, when made by a judge, may be enforced as the order of the court.

Source:

C. Civ. P. 1877, § 188; R.C. 1895, § 5343; R.C. 1899, § 5343; R.C. 1905, § 6929; C.L. 1913, § 7528; R.C. 1943, § 32-0601.

Derivation:

Wait’s (N.Y.) Code, 218; Harston’s (Cal.) Practice, 525.

Notes to Decisions

Alternative to Mandamus Action.

Trial court incorrectly concluded that injunction was an inappropriate form of relief, since a writ of injunction under this chapter is the correlative of the writ of mandamus under N.D.C.C. Ch. 32-34, and public officers can be compelled to comply with the law through mandamus, or mandatory injunction proceedings, the effect of the two procedures being essentially the same; therefore, a prison inmate’s right to compel prison authorities to provide him with free eyeglasses was dismissed prematurely where the performance of such an act could not be decided on the pleadings alone. Ennis v. Dasovick, 506 N.W.2d 386, 1993 N.D. LEXIS 168 (N.D. 1993).

Discretion of Court.

The granting of a temporary restraining order is within the sound legal discretion of the court. Campbell v. Campbell, 58 N.D. 244, 225 N.W. 805, 1929 N.D. LEXIS 201 (N.D. 1929).

Mortgage Foreclosure.

An injunction pendente lite can be issued only in a pending action or special proceeding, or to enjoin a mortgage foreclosure by advertisement. Security State Bank v. Peterson, 59 N.D. 341, 229 N.W. 921, 1930 N.D. LEXIS 147 (N.D. 1930).

Municipal Contract.

The taxpayers of a city had a right to maintain an action for an injunction restraining paving contract without showing any interest or injury other than that which they would suffer as taxpayers. Green v. Beste, 76 N.W.2d 165, 1956 N.D. LEXIS 112 (N.D. 1956).

Provisional Remedy.

The provisional remedy by injunction in this state is of statutory origin and is granted to a plaintiff only when necessary to protect his rights pending the final determination of the case upon the merits. Forman v. Healey, 11 N.D. 563, 93 N.W. 866, 1903 N.D. LEXIS 80 (N.D. 1903).

Supreme Court Issuing.

Writ of injunction was denied by the supreme court, the application for leave to file the information not being made by the attorney general, or in the name of the state, where the writ was sought as an original writ and not in aid of jurisdiction that had already attached. Anderson v. Gordon, 9 N.D. 480, 83 N.W. 993, 1900 N.D. LEXIS 159 (N.D. 1900).

32-06-02. Injunction — In what cases granted.

An injunction may be granted in any of the following cases:

  1. When it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which during the litigation would produce injury to the plaintiff.
  2. When, during the litigation, it shall appear that the defendant is doing or threatening, or is about to do, or is procuring or suffering, some act to be done in violation of the plaintiff’s rights respecting the subject of the action and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act.
  3. When, during the pendency of an action, it shall appear by affidavit that the defendant threatens, or is about to remove or dispose of the defendant’s property, with intent to defraud the defendant’s creditors, a temporary injunction may be granted to restrain such removal or disposition.

Source:

C. Civ. P. 1877, § 189; R.C. 1895, § 5344; R.C. 1899, § 5344; R.C. 1905, § 6930; C.L. 1913, § 7529; R.C. 1943, § 32-0602.

Derivation:

Wait’s (N.Y.) Code, 219; Harston’s (Cal.) Practice, 526.

Notes to Decisions

Adequate Alternate Remedy.

Preliminary injunctions usually will be denied if the applicant has adequate alternative remedy in the form of money damages or other relief. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

Cancellation of Instruments.

In proceedings for the surrender and cancellation of a note and chattel mortgage executed pursuant to a fraudulent understanding, plaintiff’s request for an order restraining defendants, during pendency of such action, from assigning or transferring the note and mortgage was properly denied where it stated only that plaintiff anticipated and feared that defendants would make such transfer or assignment. Federal Land Bank v. Koslofsky, 67 N.D. 322, 271 N.W. 907, 1936 N.D. LEXIS 164, 1937 N.D. LEXIS 85 (N.D. 1936).

Commercial Speech.

In determining whether the trial court’s preliminary injunction constituted an unconstitutional prior restraint, it is necessary to determine whether the communication constituted commercial or noncommercial speech and then to determine whether the trial court afforded appropriate safeguards in imposing the preliminary injunction commensurate with the type of speech involved. Fargo Women's Health Org. v. Larson, 381 N.W.2d 176, 1986 N.D. LEXIS 234 (N.D.), cert. denied, 476 U.S. 1108, 106 S. Ct. 1957, 90 L. Ed. 2d 365, 1986 U.S. LEXIS 2996 (U.S. 1986).

Advertisements of services of pro-life medical clinic held not fully protected speech, so that question of unconstitutional prior restraint of preliminary injunction prescribing false and misleading advertisements would be judged under a relaxed standard of scrutiny appropriate to commercial speech. Fargo Women's Health Org. v. Larson, 381 N.W.2d 176, 1986 N.D. LEXIS 234 (N.D.), cert. denied, 476 U.S. 1108, 106 S. Ct. 1957, 90 L. Ed. 2d 365, 1986 U.S. LEXIS 2996 (U.S. 1986).

Any system of prior restraint on speech bears a heavy presumption against its constitutionality validity. However, commercial speech does not receive the full panoply of protection under the First Amendment as do other forms of protected speech. Fargo Women's Health Org. v. Larson, 381 N.W.2d 176, 1986 N.D. LEXIS 234 (N.D.), cert. denied, 476 U.S. 1108, 106 S. Ct. 1957, 90 L. Ed. 2d 365, 1986 U.S. LEXIS 2996 (U.S. 1986).

Although the extent to which the prior restraint doctrine applies to commercial speech has not been fully delineated, it is quite clear that prior restraint on commercial speech is allowed to an extent which would not be allowed toward other forms of protected speech. Fargo Women's Health Org. v. Larson, 381 N.W.2d 176, 1986 N.D. LEXIS 234 (N.D.), cert. denied, 476 U.S. 1108, 106 S. Ct. 1957, 90 L. Ed. 2d 365, 1986 U.S. LEXIS 2996 (U.S. 1986).

Criminal Proceedings.

An injunction will not be granted to stay criminal or quasi criminal proceedings. Lockwood v. Baird, 59 N.D. 713, 231 N.W. 851, 1930 N.D. LEXIS 189 (N.D. 1930).

The fact that a state statute can be enforced only by criminal prosecutions does not defeat the jurisdiction of equity to enjoin unlawful interference with property rights by unauthorized criminal proceedings under the statute. Weyman-Bruton Co. v. Ladd, 231 F. 898, 1916 U.S. App. LEXIS 1731 (8th Cir. N.D. 1916), limited, Smith v. Tillitson, 29 F.2d 535, 1928 U.S. App. LEXIS 2743 (8th Cir. Kan. 1928).

Defective Complaint.

An application for a temporary injunction should be denied where the complaint does not show a cause of action, and the defect in the complaint cannot be supplied by affidavit. King v. Stark County, 66 N.D. 467, 266 N.W. 654, 1936 N.D. LEXIS 189, 1936 N.D. LEXIS 190 (N.D. 1936).

Demand for Relief.

To authorize an injunction pendente lite the complaint must exhibit a right to a judgment of injunction, and the demand for relief must pray that the defendant be restrained from the commission of the act complained of during the litigation. McClure v. Hunnewell, 13 N.D. 84, 99 N.W. 48, 1904 N.D. LEXIS 13 (N.D. 1904).

A temporary restraining order may be issued in a civil action when one of the several conditions enumerated in the statute is shown to exist, but only when it shall appear by the complaint that the plaintiff is entitled to the relief demanded. Burton v. Walker, 13 N.D. 149, 100 N.W. 257, 1904 N.D. LEXIS 34 (N.D. 1904).

Determinative Factors.

The following factors are appropriate in determining whether injunctive relief should be granted: (1) substantial probability of succeeding on the merits; (2) irreparable injury; (3) harm to other interested parties; (4) effect on the public interest. (See Dataphase Systems v. C. L. Systems, 640 F.2d 109 (8th Cir. 1981) for a summary of these factors which is consistent with North Dakota law.) F-M Asphalt v. North Dakota State Highway Dep't, 384 N.W.2d 663, 1986 N.D. LEXIS 293 (N.D. 1986).

Nothing in record indicated that money damages would have been inadequate, that defendants would have been unable to satisfy money judgment in event that plaintiffs prevailed on merits, or that bank was in any danger as financial institution. Absence of any such evidence indicated that plaintiffs’ injuries, if any, could be adequately compensated by an award of damages and that plaintiffs were not likely to suffer irreparable harm before decision on merits could be rendered. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

A trial court’s discretion to grant or deny a preliminary injunction is based upon the following factors: (1) substantial probability of succeeding on the merits; (2) irreparable injury; (3) harm to other interested parties; and (4) effect on the public interest. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

Landowner was not entitled to injunctive relief prohibiting a city from entering the landowner’s property to remove nuisance vehicles because the landowner did not show any injunctive relief factors weighed in the landowner’s favor, as the landowner did not show (1) a substantial probability of succeeding on the merits, (2) irreparable injury, (3) harm to other interested parties, or (4) a benefit to the public interest from granting the landowner the relief requested. State ex rel. City of Marion v. Alber, 2019 ND 289, 936 N.W.2d 52, 2019 N.D. LEXIS 289 (N.D. 2019).

Discretion of Court.

The granting or refusing of a temporary restraining order lies within the sound legal discretion of the court to which application is made. Bartels N. Oil Co. v. Jackman, 29 N.D. 236, 150 N.W. 576, 1915 N.D. LEXIS 7 (N.D. 1915); Federal Land Bank v. Koslofsky, 67 N.D. 322, 271 N.W. 907, 1936 N.D. LEXIS 164, 1937 N.D. LEXIS 85 (N.D. 1936).

The court may enjoin conduct which, if not restrained, would produce injury to the plaintiff “when it shall appear by the complaint that the plaintiff is entitled to the relief demanded”. On appeal, the North Dakota supreme court will not set aside an order granting a preliminary injunction unless the trial court abused its discretion in entering the order. Fargo Women's Health Org. v. Larson, 381 N.W.2d 176, 1986 N.D. LEXIS 234 (N.D.), cert. denied, 476 U.S. 1108, 106 S. Ct. 1957, 90 L. Ed. 2d 365, 1986 U.S. LEXIS 2996 (U.S. 1986).

A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

Decision to grant or deny preliminary injunction is within discretion of trial court, and its determination will not be disturbed on appeal unless it abused its discretion. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

Disputed Title.

Court had no authority, by an injunction, to take from defendant property clearly his and to which he held title, merely because there was a dispute between the parties as to the fulfillment of the terms of the contract of sale. FARMERS UNION OIL CO. v. KILGORE, 71 N.D. 199, 299 N.W. 318, 1941 N.D. LEXIS 154 (N.D. 1941).

Duration of Temporary Injunction.

A temporary injunction is issued only to preserve the rights of the plaintiff during the pendency of the action and where the reasons for granting such injunction have ceased to exist and it is not likely that the acts which the temporary injunction sought to prohibit will be renewed, the injunction should be dissolved. Brace v. Steele County, 77 N.D. 276, 42 N.W.2d 672, 1950 N.D. LEXIS 127, 1950 N.D. LEXIS 128 (N.D. 1950).

Extraordinary Remedy.

Preliminary injunction is an extraordinary and drastic remedy and should not be granted unless the movant, by a clear showing, carries the burden of persuasion. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

Irregular Issuance.

An injunctional order in an equity case pendente lite issued by a court having full equity powers and complete jurisdiction of the subject matter must be obeyed while it remains in force, however irregularly it may have issued. State v. Markuson, 7 N.D. 155, 73 N.W. 82, 1897 N.D. LEXIS 53 (N.D. 1897).

Irreparable Harm.

In absence of any evidence of irreparable harm, district court abused its discretion in issuing preliminary injunction limiting expenses of officers, directors and employees of the bank and compensation of defendant as well as restraining directors, officers, shareholders and employees of bank from taking any action to impair value of bank. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

An injury is irreparable when it cannot be adequately compensated in damages, and it is not necessary that pecuniary damage be shown to be great. Acts which result in a serious change of, or are destructive to, the property affected either physically or in the character in which it has been held or enjoyed, do an irreparable injury. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

Preservation of Status Quo.

Preservation of the status quo recognizes that the most important prerequisite for issuance of a preliminary injunction is demonstrating that, if a preliminary injunction is not granted, the applicant is likely to suffer irreparable harm before decision on merits can be rendered. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

Court’s discretion is exercised in light of preserving status quo and protecting rights of applicant pending determination on the merits. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

Provisional Remedy.

A defendant in a civil action is not entitled to a provisional remedy by injunction. Forman v. Healey, 11 N.D. 563, 93 N.W. 866, 1903 N.D. LEXIS 80 (N.D. 1903).

Scope of Appellate Review.

In reviewing the propriety of a preliminary injunction, it is inappropriate for the supreme court to resolve merit issues on the principal action. Fargo Women's Health Org. v. Larson, 381 N.W.2d 176, 1986 N.D. LEXIS 234 (N.D.), cert. denied, 476 U.S. 1108, 106 S. Ct. 1957, 90 L. Ed. 2d 365, 1986 U.S. LEXIS 2996 (U.S. 1986).

In determining whether or not the trial court abused its discretion in granting the preliminary injunction, the North Dakota supreme court is bound by the facts as presented to the trial court. Fargo Women's Health Org. v. Larson, 381 N.W.2d 176, 1986 N.D. LEXIS 234 (N.D.), cert. denied, 476 U.S. 1108, 106 S. Ct. 1957, 90 L. Ed. 2d 365, 1986 U.S. LEXIS 2996 (U.S. 1986).

Supreme Court Issuing.

The supreme court, in the exercise of its original jurisdiction, can issue a writ of injunction only upon an information therefor filed by the attorney general or under his authority, and by leave of the court first obtained and in the name of the state. Anderson v. Gordon, 9 N.D. 480, 83 N.W. 993, 1900 N.D. LEXIS 159 (N.D. 1900).

Because a candidate for insurance commissioner was not a resident until after November 2016, she would not have been a North Dakota resident for five years on November 3, 2020. Thus, pursuant to N.D.C.C. §§ 27-02-04 and 32-06-02(1), an elector was entitled to a writ of injunction restraining the Secretary of State from placing the candidate’s name on the general election ballot. Berg v. Jaeger, 2020 ND 178, 948 N.W.2d 4, 2020 N.D. LEXIS 181 (N.D. 2020).

Tourist Camp Inspection.

A tourist camp operator could not maintain an action to enjoin inspection of the camp by the state food commissioner and the inspector of hotels. Lockwood v. Baird, 59 N.D. 713, 231 N.W. 851, 1930 N.D. LEXIS 189 (N.D. 1930).

DECISIONS UNDER PRIOR LAW

Liquor Nuisance.

In action to abate a liquor nuisance under R.C. 1899, § 1605 (since repealed), it was proper to issue injunction at commencement of action upon complaint alone where complaint was made by the state’s attorney and verified by him upon information and belief. State ex rel. Register v. Patterson, 13 N.D. 70, 99 N.W. 67 (N.D. 1904).

Collateral References.

Injunction 9-24.

42 Am. Jur. 2d, Injunctions, §§ 12 et seq.

43 C.J.S. Injunctions, §§ 19 et seq.

32-06-03. Injunction — When granted — Limitation.

The injunction may be granted at the time of commencing the action, or at any time afterwards before judgment, upon its appearing satisfactorily to the court or judge, by the affidavit of the plaintiff, or of any other person, that sufficient grounds exist therefor. A copy of the affidavit must be served with the injunction. In no case shall a longer period than six months elapse before the hearing of the merits of the case shall be had for the purpose of deciding the question as to the justice or necessity of making the temporary restraining order permanent.

Source:

C. Civ. P. 1877, § 190; R.C. 1895, § 5345; R.C. 1899, § 5345; R.C. 1905, § 6931; S.L. 1911, ch. 154, § 1; C.L. 1913, § 7530; R.C. 1943, § 32-0603.

Derivation:

Wait’s (N.Y.) Code, 220; Harston’s (Cal.) Practice, 527.

Note.

This section was superseded by N.D.R.Civ.P. 65, effective July 1, 2012.

Notes to Decisions

Applicability.

This section was intended to prevent temporary orders from substituting indefinitely for a permanent ruling after a hearing on the merits, and the six-month limitation under this section applies to temporary or preliminary injunctions. State v. Holecek, 545 N.W.2d 800, 1996 N.D. LEXIS 102 (N.D. 1996).

Discretion of Court.

This section vests in the trial court the discretion to determine in the first instance whether a temporary injunction shall be granted upon the giving of the proper security; but that discretion should be exercised in the light of the rule that the purpose of a temporary injunction is to preserve the status quo and protect the rights of the plaintiff pending a determination of the merits. Gillies v. Radke, 78 N.D. 974, 54 N.W.2d 155, 1952 N.D. LEXIS 90 (N.D. 1952).

A temporary injunction may be issued by the court in its discretion at the commencement of an action, if by the pleadings and supporting affidavits the court deems sufficient grounds exist therefor. Gunsch v. Gunsch, 69 N.W.2d 739, 1954 N.D. LEXIS 121, 1955 N.D. LEXIS 101 (N.D. 1954).

Enforcement of Execution.

An injunction pendente lite can be issued only in a pending action or special proceeding, or to enjoin a mortgage foreclosure by advertisement, but not to enjoin a judgment creditor from enforcing an execution. Security State Bank v. Peterson, 59 N.D. 341, 229 N.W. 921, 1930 N.D. LEXIS 147 (N.D. 1930).

Failure to Demand Hearing or Dissolution.

Trial court erred in dismissing criminal charges under N.D.C.C. § 12.1-10-05 against defendants accused of violating temporary injunction, who had not exercised their right to demand a hearing be held within six months of the time the temporary injunction was issued or to seek dissolution of the injunction after six months under this section, because the injunction remained valid and their attempt to dissolve the injunction after alleged violation came too late. State v. Holecek, 545 N.W.2d 800, 1996 N.D. LEXIS 102 (N.D. 1996).

House of Prostitution.

A house of prostitution may be enjoined as a nuisance. State v. Simpson, 78 N.D. 360, 49 N.W.2d 777, 1951 N.D. LEXIS 95 (N.D. 1951), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435, 1970 U.S. LEXIS 52 (U.S. 1970).

Waiver of Time Limit on Hearing.

The six-month limitation imposed by this section, can be waived by a party who objects to making a temporary order permanent. Ronngren v. Beste, 483 N.W.2d 191, 1992 N.D. LEXIS 65 (N.D. 1992).

Collateral References.

Injunction 140, 141, 152.

42 Am. Jur. 2d, Injunctions, §§ 12 et seq.

43A C.J.S. Injunctions, §§ 296, 297, 310-317, 335-346.

32-06-04. When injunction allowed after answer.

An injunction shall not be allowed after the defendant shall have answered unless upon notice or upon an order to show cause, but in such case the defendant may be restrained until the decision of the court or judge granting or refusing the injunction.

Source:

C. Civ. P. 1877, § 191; R.C. 1895, § 5346; R.C. 1899, § 5346; R.C. 1905, § 6932; C.L. 1913, § 7531; R.C. 1943, § 32-0604.

Derivation:

Wait’s (N.Y.) Code, 221; Harston’s (Cal.) Practice, 528.

Note.

This section was superseded by N.D.R.Civ.P. 65, effective July 1, 2012.

Notes to Decisions

Service of Answer.

An injunction pendente lite may be allowed after the service of an answer by the defendant. Murphy v. Swanson, 50 N.D. 788, 198 N.W. 116, 1924 N.D. LEXIS 32 (N.D. 1924).

32-06-05. Security upon an injunction — Damages.

When no provision is made by statute as to security upon an injunction, the court or judge shall require a written undertaking on the part of the plaintiff, with or without sureties, to the effect that the plaintiff will pay to the party enjoined such damages, not exceeding an amount to be specified, as the party may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto. The damages may be ascertained by a reference or otherwise as the court shall direct.

Source:

C. Civ. P. 1877, § 192; R.C. 1895, § 5347; R.C. 1899, § 5347; R.C. 1905, § 6933; C.L. 1913, § 7532; R.C. 1943, § 32-0605.

Derivation:

Wait’s (N.Y.) Code, 222; Harston’s (Cal.) Practice, 529.

Note.

This section was superseded by N.D.R.Civ.P. 65, effective July 1, 2012.

Notes to Decisions

Application of Statute.

The provisions of this statute as to security upon an injunction are mandatory. Murphy v. Swanson, 50 N.D. 788, 198 N.W. 116, 1924 N.D. LEXIS 32 (N.D. 1924).

Discretion of Court.

In proceedings to enjoin increased utility rates, it was not an abuse of discretion for trial court to require defendants to furnish adequate bonds conditioned for the repayment of surcharges collected under the purported orders of the public service commission. State ex rel. Lemke v. Union Light, Heat, & Power Co., 47 N.D. 402, 182 N.W. 539, 1921 N.D. LEXIS 115 (N.D. 1921).

A trial court, upon dissolution of injunction, has discretionary power to assess damages, to order the damages to be ascertained by reference or in such other manner as the court may direct, or leave the injunction defendant to his remedy by an action at law. Wolfgram v. Hall, 79 N.D. 138, 54 N.W.2d 896, 1952 N.D. LEXIS 105 (N.D. 1952).

Failure to Furnish Security.

Failure to furnish security for a temporary injunction does not necessarily require the injunction to be vacated, but is a matter that may be remedied by the furnishing of the security. Hunt Oil Co. v. Kerbaugh, 283 N.W.2d 131, 1979 N.D. LEXIS 296 (N.D. 1979).

Failure to Require Bond.

Whether a trial court erred in granting an injunction pendente lite without requiring a bond from the plaintiffs is not important on appeal from the final judgment in an action tried on the merits. Weeks v. Hetland, 52 N.D. 351, 202 N.W. 807, 1925 N.D. LEXIS 26 (N.D. 1925).

Where, at the inception of an action by conditional buyers to enjoin conditional vendors from taking possession of or selling the property, the plaintiffs furnished the required written undertaking, unlimited in amount, an injunction issued by the trial court was not invalid for want of the undertaking required by this section. Mevorah v. Goodman, 65 N.W.2d 278, 1954 N.D. LEXIS 85, 1954 N.D. LEXIS 86 (N.D. 1954).

Purpose of Statute.

The purpose of the security required to be given upon the granting of an injunction pursuant to this section is to indemnify the defendants against damages resulting from injury sustained as a consequence of the injunction. The statute does not require security for punitive damages. Gillies v. Radke, 78 N.D. 974, 54 N.W.2d 155, 1952 N.D. LEXIS 90 (N.D. 1952).

Security Mandatory.

Where no provision as to security is made by statute, furnishing of security is required for the issuance of a temporary injunction. Hunt Oil Co. v. Kerbaugh, 283 N.W.2d 131, 1979 N.D. LEXIS 296 (N.D. 1979).

Collateral References.

Injunction 148.

42 Am. Jur. 2d, Injunctions, §§ 282 et seq.

43A C.J.S. Injunctions, §§ 286-290.

Dismissal of suit for injunction as conclusively establishing that temporary injunction had been improvidently granted, 54 A.L.R.2d 473, 505.

Necessary parties defendant to independent action on injunction bond, 55 A.L.R.2d 545.

Prerequisite to issuance of temporary restraining order, 73 A.L.R.2d 854.

Court’s lack of jurisdiction of subject matter in granting injunction as a defense in action on injunction bond, 82 A.L.R.2d 1064.

Dismissal without prejudice as breach of injunction bond, 91 A.L.R.2d 1312.

Period for which damages are recoverable or are computed under injunction bond, 95 A.L.R.2d 1190.

32-06-06. Order to show cause.

If the court or judge deems it proper that the defendant, or any of the several defendants, should be heard before granting the injunction, an order may be made requiring cause to be shown at a specified time and place why the injunction should not be granted, and the defendant in the meantime may be restrained.

Source:

C. Civ. P. 1877, § 193; R.C. 1895, § 5348; R.C. 1899, § 5348; R.C. 1905, § 6934; C.L. 1913, § 7533; R.C. 1943, § 32-0606.

Derivation:

Wait’s (N.Y.) Code, 223; Harston’s (Cal.) Practice, 530.

Note.

This section was superseded by N.D.R.Civ.P. 65, effective July 1, 2012.

Notes to Decisions

Application of Statute.

This section recognizes the jurisdiction of the court to grant a temporary injunction ex parte and places the question of whether a hearing shall be had prior to such granting within the discretion of the court. State v. Simpson, 78 N.D. 360, 49 N.W.2d 777, 1951 N.D. LEXIS 95 (N.D. 1951), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435, 1970 U.S. LEXIS 52 (U.S. 1970).

Irregularity in Issuing.

An irregularity in the manner of the issuance of the temporary injunction cannot avail the defendant in a criminal contempt proceeding for violating the injunction. State v. Simpson, 78 N.D. 360, 49 N.W.2d 777, 1951 N.D. LEXIS 95 (N.D. 1951), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435, 1970 U.S. LEXIS 52 (U.S. 1970).

32-06-07. Restraining orders — When issued.

A restraining order, or an order to show cause in the nature of a restraining order, will not be issued ex parte or without a hearing, unless it shall be shown in the moving papers that there exists such an exigency or occasion as requires the immediate issuance of an order so that the rights of the parties may be preserved.

Source:

District Court Rule No. 6; R.C. 1943, § 32-0607.

Note.

This section was superseded by N.D.R.Civ.P. 65, effective July 1, 2012.

Notes to Decisions

Application of Statute.

This section refers to the restraining of acts not illegal in themselves but which may destroy the status quo of the matter in issue until the rights of the parties are adjudicated. State v. Simpson, 78 N.D. 360, 49 N.W.2d 777, 1951 N.D. LEXIS 95 (N.D. 1951), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435, 1970 U.S. LEXIS 52 (U.S. 1970).

Damages.

In a case involving a prescriptive road, an owner was not entitled to damages or attorney fees regarding the procedural method used under current law for obtaining an ex parte temporary restraining order. Such orders were allowed in exigent circumstances to preserve the parties’ rights. McKenzie County v. Reichman, 2012 ND 20, 812 N.W.2d 332, 2012 N.D. LEXIS 20 (N.D. 2012).

Dissolving Temporary Restraining Order.

Where party made a prima facie showing entitling it to a temporary restraining order, and no change in the facts or law occurred between the time the restraining order was granted and the time it was dissolved, the temporary restraining order should not have been dissolved and the district court abused its discretion in doing so. Amerada Hess Corp. v. Furlong Oil & Minerals Co., 336 N.W.2d 129, 1983 N.D. LEXIS 308 (N.D. 1983).

Purpose of Order.

The purpose of a restraining order is to keep matters in status quo until a determination is made whether a temporary injunction should issue. Gunsch v. Gunsch, 69 N.W.2d 739, 1954 N.D. LEXIS 121, 1955 N.D. LEXIS 101 (N.D. 1954).

32-06-08. Injunction against corporation or limited liability company — When granted.

An injunction to suspend the general and ordinary business of a corporation or limited liability company must not be granted without due notice of the application therefor to the proper officer of the corporation or to the proper manager of the limited liability company, except when the state is a party to the proceeding.

Source:

C. Civ. P. 1877, § 194; R.C. 1895, § 5349; R.C. 1899, § 5349; R.C. 1905, § 6935; C.L. 1913, § 7534; R.C. 1943, § 32-0608; S.L. 1993, ch. 54, § 106.

Derivation:

Wait’s (N.Y.) Code, 224; Harston’s (Cal.) Practice, 531.

Note.

This section was superseded by N.D.R.Civ.P. 65, effective July 1, 2012.

32-06-09. Application to vacate — When injunction granted without notice.

If an injunction is granted by a judge of a court without due notice, the defendant at any time before the trial may apply, upon notice, to a judge of the court in which the action is brought, to vacate or modify the same. The application may be made upon the complaint and the affidavits on which the injunction was granted or upon affidavits on the part of the defendant, with or without the answer.

Source:

C. Civ. P. 1877, § 195; R.C. 1895, § 5350; R.C. 1899, § 5350; R.C. 1905, § 6936; C.L. 1913, § 7535; R.C. 1943, § 32-0609.

Derivation:

Wait’s (N.Y.) Code, 225; Harston’s (Cal.) Practice, 532.

Note.

This section was superseded by N.D.R.Civ.P. 65, effective July 1, 2012.

Notes to Decisions

Motion to Vacate.

When an injunction pendente lite has been issued without notice by a court of equity having jurisdiction of the subject matter and of the defendant, the defendant may, at any time under this section, move to vacate it, but until such motion is granted the injunctional order remains in full force. State v. Simpson, 78 N.D. 360, 49 N.W.2d 777, 1951 N.D. LEXIS 95 (N.D. 1951), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435, 1970 U.S. LEXIS 52 (U.S. 1970).

Waiver.

Any question about the propriety of the trial court issuing temporary restraining order was waived by failure of defendants to move that it be quashed, and by failure to insist on a dissolution upon hearing, and by the submission of the whole matter for trial on the merits. Gunsch v. Gunsch, 69 N.W.2d 739, 1954 N.D. LEXIS 121, 1955 N.D. LEXIS 101 (N.D. 1954).

Collateral References.

Injunction 160-188.

42 Am. Jur. 2d, Injunctions, § 311.

43A C.J.S. Injunctions, §§ 373-377, 379-392.

32-06-10. Counteraffidavits to vacate injunction.

If the application to vacate an injunction is made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavit or other proofs in addition to those on which the injunction was granted.

Source:

C. Civ. P. 1877, § 196; R.C. 1895, § 5351; R.C. 1899, § 5351; R.C. 1905, § 6937; C.L. 1913, § 7536; R.C. 1943, § 32-0610.

Derivation:

Wait’s (N.Y.) Code, 226.

Note.

This section was superseded by N.D.R.Civ.P. 65, effective July 1, 2012.

Notes to Decisions

Rebutting Affidavits.

The use of rebutting affidavits, upon a motion to vacate the judge’s order granting an injunction, is not contemplated by the statute. McCann v. Mortgage, Bank & Inv. Co., 3 N.D. 172, 54 N.W. 1026, 1893 N.D. LEXIS 11 (N.D. 1893).

32-06-11. Restraining orders — Orders to show cause — Motions.

Upon the hearing on an application for a restraining order, or on an order to show cause, or on a motion, oral testimony will not be received unless the court shall direct otherwise. The moving party shall have the opening and closing of the argument. Upon default of any party to appear, the court nevertheless shall proceed to hear or to dismiss, as the case may be.

Source:

District Court Rule No. 7; R.C. 1943, § 32-0611.

Note.

This section was superseded by N.D.R.Civ.P. 65, effective July 1, 2012.

CHAPTER 32-07 Claim and Delivery

32-07-01. Plaintiff may claim immediate delivery.

The plaintiff in an action to recover the possession of personal property, at the time of issuing the summons or at any time before answer, may claim the immediate delivery of such property as provided in this chapter.

Source:

C. Civ. P. 1877, § 176; R.C. 1895, § 5331; R.C. 1899, § 5331; R.C. 1905, § 6917; C.L. 1913, § 7516; R.C. 1943, § 32-0701.

Derivation:

Wait’s (N.Y.) Code, 206; Harston’s (Cal.) Practice, 509.

Cross-References.

Damages for conversion of personalty, see N.D.C.C. § 32-03-23.

Notes to Decisions

Damages for Use During Detention.

In an action of claim and delivery, a party recovering property wrongfully detained from his possession may recover as damages the value of its use during the period of detention where it has a usable value and is not held for sale or consumption. Tooz v. Tooz, 76 N.D. 732, 39 N.W.2d 257, 1949 N.D. LEXIS 94 (N.D. 1949).

Demand.

In an action of claim and delivery to recover possession of buildings, no demand was necessary where plaintiff’s right to recover was contested by the defendant upon a claim of superior right. Myrick v. Bill, 17 N.W. 268, 3 Dakota 284, 1883 Dakota LEXIS 3 (Dakota 1883).

Exempt Property.

An action in claim and delivery will lie to recover property exempt from attachment. Wagner v. Olson, 3 N.D. 69, 54 N.W. 286, 1893 N.D. LEXIS 1 (N.D. 1893); Oliver v. Wilson, 8 N.D. 590, 80 N.W. 757, 1899 N.D. LEXIS 53 (N.D. 1899).

Foreclosure Action Distinguished.
—Law of the Case.

Defendants’ claim they were entitled to jury trial because plaintiff’s action was a legal action for possession of specific property, and not an equitable action for foreclosure, could not be raised following trial court’s decision to the contrary prior to defendants’ first appeal, because the law-of-the-case doctrine encompassed issues decided by the trial court which were not presented for review in prior appeal. Sargent County Bank v. Wentworth, 547 N.W.2d 753, 1996 N.D. LEXIS 154 (N.D. 1996).

Joint Ownership.

Where indivisible property is jointly owned, a co-owner may not recover damages in an action of claim and delivery on account of its detention by another co-owner who has possession of the property. Tooz v. Tooz, 76 N.D. 732, 39 N.W.2d 257, 1949 N.D. LEXIS 94 (N.D. 1949).

Jurisdiction.

One who invokes or submits himself to the jurisdiction of a court cannot later object to the exercise of its jurisdiction on the ground of noncompliance with the statute by the adverse party. Allen v. Bohner, 54 N.D. 14, 208 N.W. 234 (1926), decided prior to the adoption of N.D.R.Civ.P. 12.

Rule 54(b) Determination.

In claim and delivery proceedings, where trial court was not requested to make and did not make an express N.D.R.Civ.P. 54(b) determination, nor was such a determination implicit in the court’s decision, an order granting creditor possession of certain property was not immediately appealable, as there were issues remaining to be determined. Massey-Ferguson Credit Corp. v. Bloomquist, 444 N.W.2d 694, 1989 N.D. LEXIS 176 (N.D. 1989).

Special Interest in Property.

One who is lawfully entitled to the possession of personal property, by virtue of special property therein, may maintain an action to recover the possession thereof. Everett v. Buchanan, 6 N.W. 439, 2 Dakota 249, 1880 Dakota LEXIS 4 (Dakota 1880); Suchy v. Strain, 51 N.D. 106, 199 N.W. 193, 1924 N.D. LEXIS 152 (N.D. 1924).

Collateral References.

Replevin 25.

66 Am. Jur. 2d, Replevin, § 54.

77 C.J.S. Replevin, §§ 42-45.

Sufficiency of proof of possession of defendant at commencement of action, 2 A.L.R.2d 1043.

Credit for upkeep or other expense in computing damages for use or detention of property, 7 A.L.R.2d 933.

Agent: remedy of replevin where agent, employed to purchase personal property, buys it for himself, 20 A.L.R.2d 1140, 1149.

Timber: action against landowner for recovery of possession of cut timber after his revocation of license, 26 A.L.R.2d 1194, 1197.

Use of property: recovery of damages in replevin for value of use of property detained, by successful party having only security interest as conditional vendor, chattel mortgagee, or the like, 33 A.L.R.2d 774.

Availability of replevin or similar possessory action to one not claiming as heir, legatee, or creditor of decedent’s estate, against personal representative, 42 A.L.R.2d 418.

Loss of profits: allowance, in replevin action, of loss of profits from deprivation of use of detained property, 48 A.L.R.2d 1053.

County that may bring replevin, or similar possessory action, 60 A.L.R.2d 487.

Attorneys’ fees, recovery, as damages by successful litigant in replevin or detinue action, 60 A.L.R.2d 945.

Cotenants: maintenance of replevin or similar possessory remedy by cotenant, or security transaction creditor thereof, against other cotenants, 93 A.L.R.2d 358.

Possession: recovery of value of property in replevin or similar possessory action where defendant, at time action is brought, is no longer in possession of property, 97 A.L.R.2d 896.

Voluntary dismissal of replevin action by plaintiff as affecting defendant’s right to judgment for the return or value of the property, 24 A.L.R.3d 768.

Consumer goods: modern view as to validity of statute or contractual provision authorizing summary repossession of consumer goods sold under retail installment sales contract, 45 A.L.R.3d 1233.

Comment note: Amount of attorneys’ compensation in absence of contract or statute fixing amount, 57 A.L.R.3d 475.

Prejudgment seizures: modern views as to validity, under federal constitution, of state prejudgment attachment, garnishment, and replevin procedures, distraint procedures under landlords’ or innkeepers’ lien statutes, and like procedures authorizing summary seizure of property, 18 A.L.R. Fed. 223.

32-07-02. Plaintiff’s affidavit.

When a delivery is claimed, an affidavit must be made by the plaintiff, or by someone in the plaintiff’s behalf, stating:

  1. That the plaintiff is the owner of the property claimed, particularly describing it, or lawfully is entitled to the possession thereof by virtue of a special property therein, the facts in respect to which shall be set forth.
  2. That the property is detained wrongfully by the defendant.
  3. The alleged cause of the detention thereof according to the affiant’s best knowledge, information, and belief.
  4. That the property has not been taken for a tax, assessment, or fine pursuant to a statute, nor seized under an execution or attachment against the property of the plaintiff, or if so seized, that it by statute is exempt from such seizure.
  5. The actual value of the property.
  6. That a court order has been issued authorizing delivery hereunder, and is attached:
    1. Pursuant to notice to defendant and hearing on an order to show cause; or
    2. Without notice to defendant if, in addition to satisfying the requirements for an order to show cause, probable cause appears to the court that:
      1. The defendant gained possession of the property by theft or fraud;
      2. The property consists of one or more negotiable instruments or credit cards;
      3. The property is perishable and will be irreparably damaged before a hearing can be held; or
      4. The property is in immediate danger of destruction, serious harm, concealment, or removal from the state, or of sale to an innocent purchaser.

Source:

C. Civ. P. 1877, § 177; R.C. 1895, § 5332; R.C. 1899, § 5332; R.C. 1905, § 6918; C.L. 1913, § 7517; R.C. 1943, § 32-0702; S.L. 1973, ch. 260, § 1.

Derivation:

Wait’s (N.Y.) Code, 207; Harston’s (Cal.) Practice, 510.

Collateral References.

Replevin 26-32.

66 Am. Jur. 2d, Replevin, § 43.

77 C.J.S. Replevin, §§ 46-53.

32-07-03. Requisition to sheriff.

The plaintiff, by an endorsement in writing upon the affidavit, may require the sheriff of the county where the property claimed may be to take the same from the defendant and deliver it to the plaintiff.

Source:

C. Civ. P. 1877, § 178; R.C. 1895, § 5333; R.C. 1899, § 5333; R.C. 1905, § 6919; C.L. 1913, § 7518; R.C. 1943, § 32-0703.

Derivation:

Wait’s (N.Y.) Code, 208; Harston’s (Cal.) Practice, 511.

32-07-04. Security by plaintiff.

Upon the receipt of an affidavit and requisition as provided in section 32-07-03 with a written undertaking executed by one or more sufficient sureties approved by the sheriff, to the effect that they are bound in double the value of the property, as stated in such affidavit, for the prosecution of the action for the return of the property to the defendant, if return thereof is adjudged, and for the payment to the defendant of such sum as for any cause may be recovered against the plaintiff, the sheriff forthwith shall take the property described in the affidavit, if it is in the possession of the defendant or the defendant’s agent, and shall retain it in the sheriff’s custody. The sheriff also without delay shall serve on the defendant a copy of the affidavit, requisition, and undertaking by delivering the same to the defendant personally, if the defendant can be found, or to the defendant’s agent from whose possession the property is taken, or if neither can be found, by leaving them at the usual place of abode of either with some person of suitable age and discretion.

Source:

C. Civ. P. 1877, § 179; R.C. 1895, § 5334; R.C. 1899, § 5334; R.C. 1905, § 6920; C.L. 1913, § 7519; R.C. 1943, § 32-0704.

Derivation:

Wait’s (N.Y.) Code, 209; Harston’s (Cal.) Practice, 512.

Cross-References.

Sheriff’s fees, see N.D.C.C. § 11-15-07(6).

Notes to Decisions

In General.

The statutory language in this section and N.D.C.C. § 32-07-05 and 7543, C.L. 1913, is similar and the purpose sought to be achieved by them is similar. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).

Breach of Undertaking.

The condition in plaintiff’s undertaking “for the prosecution of the action” is broken if plaintiff fails to prosecute the action to a final determination on the merits, either through his own fault or through the fault of the justice before whom the action is pending in entering a void judgment. Siebolt v. Konatz Sadlery Co., 15 N.D. 87, 106 N.W. 564, 1906 N.D. LEXIS 16 (N.D. 1906).

Prejudgment Seizure As Drastic Remedy.

Prejudgment seizure of a defendant’s property before there has been a determination of the underlying claim and before the defendant has had an opportunity to be heard on the merits of the underlying claim, is a drastic remedy the granting of which demands the utmost caution and sensitivity. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).

Strict Compliance with Statutes.

In view of the magnitude of harm that a plaintiff may visit upon a defendant by obtaining prejudgment possession of the defendant’s property through claim and delivery proceedings, strict compliance with statutes designed to protect the defendant is required. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).

Sufficiency of Defendant As Surety.

Trial court erred in granting secured-creditor defendant prejudgment possession of plaintiff’s machinery and equipment pursuant to this section and N.D.C.C. § 32-07-05 because the replevin bond and written undertaking filed by defendant was executed by defendant only and was not executed by any sureties, even though plaintiff failed to object to the sufficiency of defendant as surety within the three days after service statutory period. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).

Undertakings with No Sureties.

The North Dakota Supreme Court discerns no reason why claim and delivery undertakings with no sureties should be treated any differently than attachment undertakings with no sureties. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).

Collateral References.

Replevin 33.

66 Am. Jur. 2d, Replevin, §§ 44, 45.

77 C.J.S. Replevin, §§ 54-60.

32-07-05. Exceptions by defendant to sufficiency of sureties or amount of undertaking.

The defendant, within three days after the service of a copy of the affidavit, requisition, and undertaking, may give notice to the sheriff that the defendant excepts to the sufficiency of the sureties, or the amount of the undertaking. If the defendant fails to do so, the defendant shall be deemed to have waived all objection to them. When the defendant excepts to the sufficiency of the sureties, the sureties shall justify as provided in chapter 32-02, and the sheriff shall be responsible for the sufficiency of the sureties until the objection to them is either waived as above provided, or until they shall justify or new sureties shall be substituted and shall justify. If the defendant excepts to the sureties, or to the amount of the undertaking, the defendant cannot reclaim the property as provided in section 32-07-06. When the defendant excepts to the amount of the undertaking, the sheriff shall retain possession of the property for five days after the service of notice of such exception upon the sheriff. In such case the defendant, upon two days’ notice to the plaintiff, may apply to the judge of the court in which the action is pending for an order requiring the plaintiff to execute an undertaking in such action in a larger amount than that of the undertaking which has been served. The affidavits upon which the defendant bases the defendant’s application shall be served with the notice. If the application is denied, the order of the court shall direct the sheriff forthwith to deliver the property to the plaintiff. If the application is granted, the order of the court shall direct the sheriff to deliver the property to the defendant unless the plaintiff within a time of not more than four days, to be fixed by the court, shall execute a bond in such sum as the court shall prescribe, with sureties to be approved by the sheriff.

Source:

C. Civ. P. 1877, § 180; R.C. 1895, § 5335; R.C. 1899, § 5335; R.C. 1905, § 6921; C.L. 1913, § 7520; S.L. 1915, ch. 76, § 1; 1925 Supp., § 7520; R.C. 1943, § 32-0705.

Derivation:

Wait’s (N.Y.) Code, 210; Harston’s (Cal.) Practice, 513.

Notes to Decisions

In General.

The statutory language in this section and N.D.C.C. § 32-07-04 and 7543, C.L. 1913, is similar and the purpose sought to be achieved by them is similar. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).

Prejudgment Seizure As Drastic Remedy.

Prejudgment seizure of a defendant’s property before there has been a determination of the underlying claim and before the defendant has had an opportunity to be heard on the merits of the underlying claim, is a drastic remedy the granting of which demands the utmost caution and sensitivity. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).

Strict Compliance with Statutes.

In view of the magnitude of harm that a plaintiff may visit upon a defendant by obtaining prejudgment possession of the defendant’s property through claim and delivery proceedings, strict compliance with statutes designed to protect the defendant is required. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).

Sufficiency of Defendant As Surety.

Trial court erred in granting secured-creditor defendant prejudgment possession of plaintiff’s machinery and equipment pursuant to this section and N.D.C.C. § 32-07-04 because the replevin bond and written undertaking filed by defendant was executed by defendant only and was not executed by any sureties, even though plaintiff failed to object to the sufficiency of defendant as surety within the three days after service statutory period. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).

Undertakings with No Sureties.

The North Dakota supreme court discerns no reason why claim and delivery undertakings with no sureties should be treated any differently than attachment undertakings with no sureties. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).

32-07-06. Redelivery to defendant.

At any time before the delivery of the property to the plaintiff, the defendant, if the defendant does not except to the sureties of the plaintiff or the amount of the plaintiff’s undertaking, may require the return thereof upon giving to the sheriff a written undertaking executed by two or more sufficient sureties to the effect that they are bound in double the value of the property as stated in the affidavit of the plaintiff for the delivery thereof to the plaintiff, if such delivery is adjudged, and for the payment to the plaintiff of such sum as for any cause may be recovered against the defendant. If a return of the property is not so required within three days after the taking and service of notice on the defendant, it shall be delivered to the plaintiff except as provided in section 32-07-10.

Source:

C. Civ. P. 1877, § 181; R.C. 1895, § 5336; R.C. 1899, § 5336; R.C. 1905, § 6922; C.L. 1913, § 7521; R.C. 1943, § 32-0706.

Derivation:

Wait’s (N.Y.) Code, 211; Harston’s (Cal.) Practice, 514.

Notes to Decisions

Amount of Bond.

In claim and delivery action the amount of the redelivery bond of the defendant is fixed by the value of the property as alleged in the affidavit. Dickinson v. First Nat'l Bank, 64 N.D. 273, 252 N.W. 54, 1933 N.D. LEXIS 274 (N.D. 1933).

Farm Machinery.

Farm machinery could not be returned to plaintiff in substantially as good condition as it was when delivered under redelivery bond where it had not been sheltered from the weather. Anderson v. Phillips, 40 N.D. 586, 169 N.W. 315, 1918 N.D. LEXIS 110 (N.D. 1918).

Money Judgment.

Where in a claim and delivery action a money judgment only was recovered, a complaint on the redelivery bond, conditioned as provided by the statute, which alleged merely the nonpayment of the judgment, failed to state a cause of action. Larson v. Hanson, 21 N.D. 411, 131 N.W. 229, 1911 N.D. LEXIS 101 (N.D. 1911); Farmers Nat'l Bank v. Ferguson, 28 N.D. 347, 148 N.W. 1049, 1914 N.D. LEXIS 118 (N.D. 1914).

A redelivery undertaking is not only a substitute for the possession of the property by the plaintiff, but is security for any money judgment recovered. Larson v. Hanson, 26 N.D. 406, 144 N.W. 681, 1913 N.D. LEXIS 74 (N.D. 1913).

Possession by Defendant.

One who gives a forthcoming bond in an action of claim and delivery is estopped from denying that the property was in his possession at the commencement of the action. Warren v. Olson, 46 N.D. 203, 180 N.W. 529, 1920 N.D. LEXIS 65 (N.D. 1920).

Recovery Against Sureties.

In order to recover from sureties on a redelivery undertaking, it is necessary to allege and prove either the due entry of a judgment in the alternative form or facts showing that it was impossible to return the property. Farmers Nat'l Bank v. Ferguson, 28 N.D. 347, 148 N.W. 1049, 1914 N.D. LEXIS 118 (N.D. 1914).

Collateral References.

Replevin 47-50.

66 Am. Jur. 2d, Replevin, § 48.

77 C.J.S. Replevin, §§ 74-79.

32-07-07. Justification.

The defendant’s sureties shall justify in the manner provided in chapter 32-02. Upon such justification the sheriff shall deliver the property to the defendant and the undertaking to the plaintiff. The sheriff shall be responsible for the defendant’s sureties, until they justify, or until justification is completed or expressly waived, and may retain the property until that time, but if they, or others in their place, fail to justify at the time and place appointed, the sheriff shall deliver the property to the plaintiff.

Source:

C. Civ. P. 1877, § 182; R.C. 1895, § 5337; R.C. 1899, § 5337; R.C. 1905, § 6923; C.L. 1913, § 7522; R.C. 1943, § 32-0707.

Derivation:

Wait’s (N.Y.) Code, 212; Harston’s (Cal.) Practice, 515.

Note.

Although N.D.C.C. § 28-30-05 has been superseded by the North Dakota Rules of Civil Procedure, a part of such section has been retained and combined with this section by inserting the words “and the undertaking to the plaintiff” in this section.

32-07-08. Concealed property.

If the property, or any part thereof, is concealed in a building or enclosure, the sheriff publicly shall demand its delivery. If it is not delivered, the sheriff shall cause the building or enclosure to be broken open and shall take the property into the sheriff’s possession, and, if necessary, the sheriff may call to the sheriff’s aid the power of the county.

Source:

C. Civ. P. 1877, § 184; R.C. 1895, § 5339; R.C. 1899, § 5339; R.C. 1905, § 6925; C.L. 1913, § 7524; R.C. 1943, § 32-0708.

Derivation:

Wait’s (N.Y.) Code, 214; Harston’s (Cal.) Practice, 517.

32-07-09. Keeping property.

When the sheriff shall have taken property as in this chapter provided, the sheriff shall keep it in a secure place and shall deliver it to the party entitled thereto upon receiving the sheriff’s lawful fees for taking and the sheriff’s necessary expenses for keeping the same.

Source:

C. Civ. P. 1877, § 185; R.C. 1895, § 5340; R.C. 1899, § 5340; R.C. 1905, § 6926; C.L. 1913, § 7525; R.C. 1943, § 32-0709.

Derivation:

Wait’s (N.Y.) Code, 215; Harston’s (Cal.) Practice, 518.

32-07-10. Claim by third person.

If the property taken is claimed by any person other than the defendant or the defendant’s agent, and such person shall make affidavit of such person’s title thereto and right to the possession thereof, stating the grounds of such right and title, and shall serve the same upon the sheriff, the sheriff shall not be bound to keep the property or deliver it to the plaintiff, unless the plaintiff on demand shall indemnify the sheriff against such claim by an undertaking executed by two sureties in the amount of the value of the property as specified in the affidavit of the plaintiff. No claim to such property by any person other than the defendant or the defendant’s agent shall be valid against the sheriff, unless made as aforesaid, and notwithstanding such claim, when so made, the sheriff may retain the property a reasonable time to demand such indemnity.

Source:

C. Civ. P. 1877, § 186; R.C. 1895, § 5341; R.C. 1899, § 5341; R.C. 1905, § 6927; C.L. 1913, § 7526; R.C. 1943, § 32-0710.

Derivation:

Wait’s (N.Y.) Code, 216; Harston’s (Cal.) Practice, 519.

Notes to Decisions

Sheriff to Be Indemnified.

It is the duty of the plaintiff, where a claim is made by a third person, to indemnify the sheriff. Welter v. Jacobson, 7 N.D. 32, 73 N.W. 65, 1897 N.D. LEXIS 51 (N.D. 1897).

Collateral References.

Replevin 52

66 Am. Jur. 2d, Replevin, § 42

32-07-11. Papers filed with clerk.

The sheriff shall file the notice and affidavit, with the sheriff’s proceedings thereon, with the clerk of the court in which the action is pending, within twenty days after taking the property mentioned therein.

Source:

C. Civ. P. 1877, § 187; R.C. 1895, § 5342; R.C. 1899, § 5342; R.C. 1905, § 6928; C.L. 1913, § 7527; R.C. 1943, § 32-0711.

Derivation:

Wait’s (N.Y.) Code, 217; Harston’s (Cal.) Practice, 520.

Notes to Decisions

Failure to File Notice and Affidavit.

A sheriff’s failure to file the notice and affidavit with his proceedings thereon after taking property on plaintiff’s requisition does not avoid a claim and delivery proceeding. Bingenheimer Mercantile Co. v. Horning, 63 N.D. 591, 249 N.W. 321, 1933 N.D. LEXIS 209 (N.D. 1933).

32-07-12. Specific personal property — Jury to find value and damages.

In an action for the recovery of specific personal property, the jury shall find by its verdict the facts, as the case may be, as follows:

  1. In case it finds against the defendant and the property has not been delivered to the plaintiff, it shall find the value of the property, or of the plaintiff’s interest therein, if less than its full value, at the time of the taking, and that the plaintiff is entitled to a delivery of the property, and it also shall assess the damages, if any are claimed in the complaint, which the plaintiff has sustained by reason of the taking and detention of such property.
  2. In case it finds against the defendant and the property has been delivered to the plaintiff, it also shall assess the damages, if any are claimed in the complaint, which the plaintiff has sustained by reason of the taking and detention of such property.
  3. In case it finds against the plaintiff and the property has been delivered to the plaintiff, and the defendant in the defendant’s answer claims a return of the property, it shall find the value thereof, or of the defendant’s interest therein, if less than its full value, at the time of the taking, and it also shall assess the damages, if any are claimed in the answer, which the defendant has sustained by reason of the taking and detention of such property.
  4. In case it finds against the plaintiff and the property has been retained by the defendant, it shall find that the defendant is entitled to such property.
  5. In case the jury finds that each party is entitled to a specific portion of the property in controversy and such portion has been delivered to the opposite party and a return is claimed in the complaint or answer, it shall find the value of such portion, or of the party’s interest therein, if less than its full value, at the time of the taking, and also shall assess the damages, if any are claimed in the complaint or answer, in favor of the plaintiff or defendant as hereinbefore provided as to the portion to which it finds the plaintiff or defendant entitled.
  6. Whenever the jury is so instructed, it shall find the value of specific portions of the property in controversy or of the interest of either party therein, if less than its full value, at the time of the taking and also shall assess the damages, if any are claimed by the party in whose favor it finds, sustained by reason of the taking and detention of such property.

Source:

C. Civ. P. 1877, § 263; R.C. 1895, § 5447; R.C. 1899, § 5447; R.C. 1905, § 7036; C.L. 1913, § 7635; R.C. 1943, § 28-1505.

Derivation:

Wait’s (N.Y.) Code, 261; Harston’s (Cal.) Practice, 627.

Note.

The provisions of former N.D.C.C. § 28-15-05 now constitute this section.

Notes to Decisions

Damages.

Damages are recoverable by the prevailing party for the wrongful taking and detaining of personal property. Holt v. Van Eps, 46 N.W. 689, 1 Dakota 206, 1875 Dakota LEXIS 13 (Dakota 1875); Jandt v. South, 47 N.W. 779, 2 Dakota 46, 1878 Dakota LEXIS 9 (Dakota 1878).

Damages for the wrongful taking and detention of property are connected with the subject of the action within the meaning of the provision concerning the form of verdict to be returned in claim and delivery proceedings. McCarty v. Kepreta, 24 N.D. 395, 139 N.W. 992, 1913 N.D. LEXIS 9 (N.D. 1913).

Where trustee in bankruptcy of a mortgagee of personal property commenced an action for possession of the property before the mortgagee was entitled to possession, but subsequently and before the trial the mortgagee became entitled to possession by reason of the maturity of the mortgage, the amount of the debt far exceeding the value of the property, the trustee could be held liable for damages only for retention up to the time of maturity of the mortgage. Smythe v. Muri, 34 N.D. 242, 158 N.W. 264, 1916 N.D. LEXIS 27 (N.D. 1916).

Manufacturer’s seizure, detention, and sale of collateral much in excess of debt owed by the dealer were proper factors to be considered by the jury in determining what damages were sustained. John Deere Co. v. Nygard Equip., 225 N.W.2d 80, 1974 N.D. LEXIS 152 (N.D. 1974).

Judgment in Alternative.

Where it is shown that plaintiff purchased the greater part of goods at an auction sale before trial and can return them to the defendant, the judgment in claim and delivery in favor of the defendant should be in the alternative rather than simply a money judgment. Smith v. Willoughby, 24 N.D. 1, 138 N.W. 7, 1912 N.D. LEXIS 4 (N.D. 1912).

Questions for Jury.

It is unnecessary for the jury to find the value of the property where it is in possession of the plaintiff, who is found to be entitled to the possession. Johnson v. Wagner, 42 N.D. 542, 174 N.W. 73, 1919 N.D. LEXIS 182 (N.D. 1919).

Separate Rights.

The right of a claimant in claim and delivery to have his property or its value, and the right to recover damages for the wrongful taking and detention thereof, are separate rights. Nichols & Shepard Co. v. Paulson, 10 N.D. 440, 87 N.W. 977, 1901 N.D. LEXIS 46 (N.D. 1901).

Collateral References.

Replevin 92-97.

66 Am. Jur. 2d, Replevin, §§ 93 et seq.

CHAPTER 32-07.1 Crime Profits Recovery

32-07.1-01. Profits from the crime of a felon — Definitions — Action to recover profits from the crime — Violations — Remedies cumulative — Limitations of actions.

  1. As used in this section:
    1. “Beneficiary” means:
      1. A person who, under applicable law, other than the provisions of this section, has or had a right to recover damages from the convicted felon for physical, mental, or emotional injury, or pecuniary loss proximately caused by the convicted felon as a result of the crime for which the felon was convicted.
      2. If a beneficiary has died, a person or estate that is entitled to recover damages.
      3. If a person has died and the death was proximately caused by the convicted felon as a result of the crime for which the felon was convicted, a person described in chapter 32-21 or any beneficiary of a will of the decedent who had a right under that will to receive more than twenty-five percent of the value of the estate of the decedent.
    2. “Beneficiary’s interest in the profits from the crime” means that portion of the profits from the crime necessary to pay the following:
      1. In the case of a beneficiary described in paragraph 1 or 2 of subdivision a, those damages which, under applicable law, other than the provisions of this section, the beneficiary has a right to recover from the convicted felon for injuries proximately caused by the convicted felon as a result of the crime for which the felon was convicted.
      2. In the case of the beneficiary described in paragraph 3 of subdivision a, those damages which under all the circumstances of the case may be just.
    3. “Convicted felon” means any person convicted of a felony, or found not guilty by reason of insanity of a felony committed in this state, either by a court or jury trial or by entry of a plea in court.
    4. “Felony” means a felony defined by any North Dakota or federal statute.
    5. “Profits from the crime” means:
      1. Any property obtained through or income substantially related to the commission of a crime of which the defendant was convicted;
      2. Any property obtained by or income substantially related to the sale, conversion, or exchange of proceeds of a crime, including any gain realized by the sale, conversion, or exchange; and
      3. Any property that the convicted felon obtained or income substantially related to the commission of the crime, including any assets obtained through the use of unique knowledge obtained during the commission of, or in preparation for the commission of, the crime, as well as any property obtained by or income substantially related to the sale, conversion, or exchange of such property and any gain realized by such sale, conversion, or exchange.
    6. “Representative of the felon” means any person or entity receiving profits from the crime by designation of the felon, or on behalf of the felon or in the stead of the felon, whether by the felon’s designation or by operation of law.
  2. All profits from the crime belonging to the convicted felon are subject to a constructive trust for the benefit of the beneficiaries set forth in this section. The trust continues until six years after the date of conviction. If an action is filed by a beneficiary to recover the beneficiary’s interest in a trust within that time limitation, the trust character of the property continues until the conclusion of the action.
    1. Any beneficiary may bring an action against a convicted felon or representative of the felon to recover the beneficiary’s interest in the trust established by this section.
    2. The action may be brought in the district court where the beneficiary resides, where the convicted felon resides, or where the proceeds are located.
    3. If the court determines that a beneficiary is entitled to profits from the crime pursuant to this section, the court shall order the payment from profits from the crime that have been received, and if that is insufficient, from profits from the crime that may be received in the future.
    4. A beneficiary’s interest in the profits from the crime must be reduced by the following amount:
      1. Money paid to the beneficiary as crime victims reparations under chapter 54-23.4 because of the crime for which the felon was convicted.
      2. Money paid to the beneficiary by the convicted felon because of a requirement of restitution imposed by a court in connection with the crime for which the felon was convicted.
      3. Money paid to the beneficiary because of a judgment against the convicted felon based upon the crime for which the felon was convicted.
    5. In the case of an unsatisfied existing judgment or order of restitution against the convicted felon and in favor of a beneficiary, any money paid to the beneficiary pursuant to this section must be applied to reduce the amount of the unsatisfied judgment or order.
  3. If there are two or more beneficiaries and the available profits from the crime are insufficient to pay all beneficiaries, the profits from the crime may be equitably apportioned among the beneficiaries taking into account the impact of the crime upon them. Twenty-five percent of the profits from the crime must be reserved for payment to the beneficiaries.
    1. The attorney general shall bring an action to require profits from the crime received by a convicted felon to be held in an express trust in a bank authorized to act as a trustee.
    2. An action may be brought under this subdivision within six months after the receipt of profits from the crime by a convicted felon or six months after the date of conviction, whichever is later. The action must be brought in the district court for Burleigh County.
    3. If the attorney general proves that the profits from the crime are subject to a constructive trust pursuant to this section and that it is more probable than not that there are beneficiaries within the meaning of this section, the court shall order all proceeds deposited in a bank and held by the bank as trustee of the trust until an order of disposition is made by a court pursuant to subsection 4, or until the expiration of the period specified in subsection 2.
    4. In any action brought pursuant to subsection 4 or 5, upon motion of a party the court shall grant a preliminary injunction to prevent any waste of the profits from the crime, if it appears that the profits from the crime are subject to the provisions of this section and that they may be subject to waste.
  4. The remedies provided by this section are in addition to other remedies provided by law. No period of limitations, except those provided by this section, limits the right of recovery under this section.
  5. The offender or any person contracting with an offender shall notify the attorney general at least thirty days before the transfer of any profits from a crime. A person who willfully violates this subsection is guilty of a class A misdemeanor.
  6. Any contract between a convicted felon or representative of the felon and another person which provides for the payment of profits from a crime other than as provided by this section is void.

Source:

S.L. 1993, ch. 340, § 1; 1995, ch. 54, § 22.

CHAPTER 32-08 Attachment [Repealed]

[Repealed by S.L. 1977, ch. 301, § 25]

Note.

For present provisions, see chapter 32-08.1.

CHAPTER 32-08.1 Attachment

32-08.1-01. Attachment availability.

Any creditor may attach the property of the creditor’s debtor, in the cases, upon the conditions, and in the manner prescribed in this chapter.

Source:

S.L. 1977, ch. 301, § 1.

Cross-References.

Banks exempt from attachment, see N.D.C.C. § 6-08-06.

Property exempt from all process, see N.D.C.C. § 28-22-01.

Property of insolvent bank exempt from attachment, see N.D.C.C. § 6-07-04.

Seizure of property, see N.D.R.Civ.P. 64.

Notes to Decisions

Constitutionality.

This chapter, as it read prior to the 1991 amendments, was held unconstitutional, as it denied due process to debtors. Garrison Mem. Hosp. v. Rayer, 453 N.W.2d 787 (N.D. 1990).

Although under this chapter, as it read prior to amendment in 1991, a defendant could seek a hearing after an ex parte prejudgment writ of attachment had been issued, there was no statute entitling a defendant to an immediate or prompt full hearing after issuance of the writ at which the plaintiff was required to prove an underlying debt or its amount or even probable cause; therefore, this chapter did not pass constitutional muster. Garrison Mem. Hosp. v. Rayer, 453 N.W.2d 787 (N.D. 1990).

This chapter, as it read prior to amendment in 1991, denied defendant due process of law since, inter alia, N.D.C.C. §§ 32-08.1-02, 32-08.1-03, 32-08.1-05 did not require the plaintiff to show the nature and amount of the claim or demonstrate probable cause to a judge exercising discretion whenever necessary to minimize the likelihood of improvident issuance of a writ. Nor did the statutes require the plaintiff to show any reason why a summary issuance of a writ of attachment was necessary to avoid removal, destruction, or concealment of the property or loss of the plaintiff’s proprietary interests or that there were any other extraordinary situations requiring special protection to a state or creditor interest. The judge’s only duty with respect to the issuance of a writ was to sign it. Only after a writ had been issued was a judge afforded any opportunity for the exercise of judicial discretion, for such things as adjusting the amount of the plaintiff’s bond or vacating or modifying the writ. Garrison Mem. Hosp. v. Rayer, 453 N.W.2d 787 (N.D. 1990).

DECISIONS UNDER PRIOR LAW

Constitutionality.

Former chapter 32-08 did not achieve the constitutional accommodation of the debtor’s and creditor’s conflicting interests required by the U. S. Supreme Court; because of that lack of constitutional accommodation, seizure of debtor’s mobile home was a denial of due process; former chapter 32-08 failed in that: 1) it was not necessary to allege summary attachment was needed to prevent removal, destruction or concealment of property or loss of creditor’s proprietary interests therein; 2) there was not adequate judicial supervision in that warrant could be issued by clerk alone without action by judge; 3) debtor seeking discharge of warrant had to post bond; 4) impact upon debtors in this particular case in physically seizing and removing their sole residence outweighed state’s interest in providing ex parte preliminary relief for creditors. Guzman v. Western State Bank, 516 F.2d 125, 1975 U.S. App. LEXIS 15713 (8th Cir. N.D. 1975).

Actions for Recovery of Money.

Attachment is essentially a legal proceeding and is confined to actions for the recovery of money only. Kohler v. Cole, 79 N.D. 226, 55 N.W.2d 589, 1952 N.D. LEXIS 115 (N.D. 1952).

Allegation of Intent to Cheat Creditor.

Where an attachment is issued upon plaintiff’s allegation in accordance with subsection 4 of this section, and the existence of this ground for attachment is denied by defendant upon a motion to discharge the attachment, plaintiff has the burden of establishing the alleged fraudulent intent as a matter of fact. Quality Builders v. Hahn, 134 N.W.2d 577, 1965 N.D. LEXIS 145 (N.D. 1965).

Bankruptcy Proceedings.

The lien of attachment on the personal property of a bankrupt, set aside as exempt in bankruptcy proceedings, is not discharged by the discharge in bankruptcy. F. Mayer Boot & Shoe Co. v. Ferguson, 19 N.D. 496, 126 N.W. 110, 1910 N.D. LEXIS 50 (N.D. 1910).

In action for purchase price of goods, where property was attached and judgment obtained within four months of filing of petition in bankruptcy, the lien of the attachment and judgment was nullified by the petition. Gray v. Arnot, 31 N.D. 461, 154 N.W. 268, 1915 N.D. LEXIS 200 (N.D. 1915).

Declaratory Judgment.

An action under the declaratory judgment statute, R.C. 1943, ch. 32-23, was not an action wherein an attachment proceeding could be brought under the provisions of this chapter. Kohler v. Cole, 79 N.D. 226, 55 N.W.2d 589, 1952 N.D. LEXIS 115 (N.D. 1952).

Dependent Remedy.

Attachment is a dependent remedy since it cannot exist independent of an action. Gans v. Beasley, 4 N.D. 140, 59 N.W. 714 (1894), distinguished, Baird v. Holie, 61 N.D. 280, 237 N.W. 786, 790 (1931), explained, Goldstein v. Peter Fox Sons Co., 22 N.D. 636, 135 N.W. 180, 40 L.R.A. (n.s.) 566 (1912), decided prior to the adoption of N.D.R.Civ.P. 12.

Description of Property.

Where an attachment is sought under subsection 8 of this section, the property must be specifically described. Weil v. Quam, 21 N.D. 344, 131 N.W. 244, 1911 N.D. LEXIS 105 (N.D. 1911).

False Pretenses.

The ground of attachment set out in subsection 6 of this section is available only when the action is commenced upon a debt which has been assented to by the defendant, and does not apply in an action to recover damages for a tort. Sonnesyn v. Akin, 12 N.D. 227, 97 N.W. 557, 1903 N.D. LEXIS 55 (N.D. 1903).

Fraud and Deceit.

The language of subsection 4 of this section states a single ground for attachment. McCarthy Bros. Co. v. McLean County Farmers Elevator Co., 18 N.D. 176, 118 N.W. 1049, 1908 N.D. LEXIS 110 (N.D. 1908).

On a motion to discharge an attachment, the plaintiff has the burden of establishing fraudulent intent in the disposition of the goods as alleged. Gamble-Robinson Minot Co. v. Mauratis, 55 N.D. 616, 214 N.W. 913, 1927 N.D. LEXIS 133 (N.D. 1927).

Statutory attachment may not issue in a judgment creditor’s equitable action to set aside a fraudulent conveyance. Security Nat'l Bank v. Bothne, 56 N.D. 269, 217 N.W. 148, 1927 N.D. LEXIS 96 (N.D. 1927).

A levy of attachment on property fraudulently transferred by the debtor constitutes election by the creditor to treat the conveyance as void. Holden v. Walker, 63 N.D. 372, 248 N.W. 318, 1933 N.D. LEXIS 192 (N.D. 1933).

Garnishment Distinguished.

Attachment and garnishment are entirely separate and distinct remedies. Park, Grant & Morris v. Nordale, 41 N.D. 351, 170 N.W. 555, 1918 N.D. LEXIS 150 (N.D. 1918).

Growing Crops.

Growing crops are subject to attachment. Kelly v. Stockgrowers Credit Corp., 66 N.D. 209, 263 N.W. 717, 1935 N.D. LEXIS 189 (N.D. 1935).

Mortgage Foreclosure.

A cause of action for the foreclosure of a real estate mortgage will not support the remedy by attachment. A. O. U. W. v. Wahlin, 61 N.D. 383, 237 N.W. 878, 1931 N.D. LEXIS 287 (N.D. 1931).

Money in the possession of the sheriff for the redemption of property sold under a mortgage foreclosure is subject to attachment by the creditor of the holder of the certificate of sale, if no duty rests on the sheriff except to pay the money to such holder. 64 N.D. 727, 256 N.W. 178.

Preference.

Payment by the debtor to one creditor in preference to another is not grounds for attachment. Quality Builders v. Hahn, 134 N.W.2d 577, 1965 N.D. LEXIS 145 (N.D. 1965).

Service of Summons.

Unless the summons in an action is served in the manner prescribed by law within required number of days after a warrant of attachment is issued therein, the writ becomes void and may be set aside on motion. Rhode Island Hosp. Trust Co. v. Keeney, 1 N.D. 411, 48 N.W. 341, 1891 N.D. LEXIS 9 (N.D. 1891).

A summons drawn and signed with the intention that it be served is issued. Smith v. Nicholson, 5 N.D. 426, 67 N.W. 296, 1896 N.D. LEXIS 43 (N.D. 1896).

Sufficiency of Complaint and Affidavit.

An affidavit was insufficient to authorize attachment where it merely stated that defendant had left the state of North Dakota, with intent to cheat and defraud his creditors. Severn v. Giese, 6 N.D. 523, 72 N.W. 922, 1897 N.D. LEXIS 30 (N.D. 1897).

The complaint and affidavit for attachment need not show that the defendant had property within this state subject to attachment. Hemmi v. Grover, 18 N.D. 578, 120 N.W. 561, 1909 N.D. LEXIS 19 (N.D. 1909); Thornley v. Lawbaugh, 31 N.D. 651, 143 N.W. 348, 1913 N.D. LEXIS 85 (N.D. 1913).

Tort Action.

Attachment may issue in a tort action for damages on the ground that defendant is a nonresident. Moen v. Melin, 57 N.D. 630, 223 N.W. 702, 1929 N.D. LEXIS 306 (N.D. 1929).

Vendor’s Lien.

After the delivery of goods sold, a vendor has no lien thereon except by virtue of the levy of an attachment. Gray v. Arnot, 31 N.D. 461, 154 N.W. 268, 1915 N.D. LEXIS 200 (N.D. 1915).

Note.

The following cases were decided under former chapter 32-08, which was declared unconstitutional; see Garrison Mem. Hosp. v. Rayer, 453 N.W.2d 787 (N.D. 1990).

Collateral References.

Attachment 21-48.

6 Am. Jur. 2d, Attachment and Garnishment, §§ 45 et seq.

7 C.J.S. Attachment, §§ 32-63, 166, 167.

What is an action for “debt” within attachment statute, 12 A.L.R.2d 787.

Foreign attachment or garnishment as available in action by nonresident against nonresident or foreign corporation upon a foreign cause of action, 14 A.L.R.2d 420.

Fraudulently contracted debt or fraudulently incurred liability or obligation within purview of statute authorizing attachment on such grounds, what constitutes a, 39 A.L.R.2d 1265, 1268.

Debt, what amounts to, within statute providing for attachment before debt is due, 58 A.L.R.2d 1451.

Alienation of affections or criminal conversation case, attachment in, 67 A.L.R.2d 527.

Liquor license as subject to execution or attachment, 40 A.L.R.4th 927.

Joint bank account as subject to attachment, garnishment, or execution by creditor of one joint depositor, 86 A.L.R.5th 527.

32-08.1-02. Issuance of writ — Hearing and notice requirement — Form and contents.

A writ of attachment may be issued on the request of the plaintiff before final judgment and after a summons and a complaint is filed. Except as provided in section 32-08.1-02.1, the writ may only be issued following a hearing at which the plaintiff shall present the affidavit described in section 32-08.1-03. The court may issue the writ of attachment only if the plaintiff has provided the required affidavit, has executed a sufficient bond as required under sections 32-08.1-03 and 32-08.1-05, and has made a prima facie showing of the right to attachment. The plaintiff shall provide the defendant with a copy of the request for the writ and the accompanying affidavit and notice of the time of the hearing. The writ, if issued, must be directed to the sheriff of some county in which the property of the defendant is supposed to be and must require the sheriff to attach all the property of the defendant within the sheriff’s county, or so much thereof as may be sufficient to satisfy the plaintiff’s demand, together with costs and expenses. The writ must be in the name of the court and be sealed with its seal and signed by its judge.

Source:

S.L. 1977, ch. 301, § 2; 1991, ch. 355, § 1.

Cross-References.

Seizure of property, see N.D.R.Civ.P. 64.

Notes to Decisions

Constitutionality.

This chapter, as it read prior to the 1991 amendments, was held unconstitutional, as it denied due process to debtors. Garrison Mem. Hosp. v. Rayer, 453 N.W.2d 787 (N.D. 1990).

DECISIONS UNDER PRIOR LAW

Note.

The following cases were decided under former chapter 32-08.

Breach of Bond.

The measure of damages for the breach of a forthcoming bond is the value of the property belonging to the defendant which had been seized, or which was subject to seizure under the warrant. Minneapolis Threshing Mach. Co. v. Warner, 52 N.D. 432, 203 N.W. 197, 1925 N.D. LEXIS 38 (N.D. 1925).

Destruction of Writ.

An undertaking to procure a discharge of an attachment destroys the writ. Fox v. Mackenzie, 1 N.D. 298, 47 N.W. 386, 1890 N.D. LEXIS 39 (N.D. 1890).

Issuance of Warrant.

The warrant of attachment is issued by the clerk in a ministerial capacity upon a verified complaint setting forth a proper cause of action for attachment and upon an affidavit setting forth in the language of the statute one or more statutory grounds for attachment. F. Mayer Boot & Shoe Co. v. Ferguson, 17 N.D. 102, 114 N.W. 1091, 1908 N.D. LEXIS 13 (N.D. 1908).

The provisions of this section are mandatory. Dickinson v. First Nat'l Bank, 64 N.D. 273, 252 N.W. 54, 1933 N.D. LEXIS 274 (N.D. 1933).

Levy Presumed Lawful.

A levy under a warrant of attachment is presumed to be lawful. Linn v. Jackson, 5 N.D. 46, 63 N.W. 208, 1895 N.D. LEXIS 5 (N.D. 1895).

Mortgage Foreclosure.

Money in the possession of the sheriff for the redemption of property sold under a mortgage foreclosure is subject to attachment by the creditor of the holder of the certificate of sale, if no duty rests on the sheriff except to pay the money to such holder. 64 N.D. 727, 256 N.W. 178.

Seizure of Goods.

It is the official duty of the sheriff to attach and safely keep the property which the warrant authorizes him to seize. Kukowski v. Emerson-Brantingham Implement Co., 43 N.D. 333, 175 N.W. 706, 1919 N.D. LEXIS 62 (N.D. 1919).

A sheriff is a proper party defendant in an action to recover goods seized. North v. Peters, 138 U.S. 271, 11 S. Ct. 346, 34 L. Ed. 936, 1891 U.S. LEXIS 2081 (U.S. 1891).

Collateral References.

Attachment 144-158, 191, 192.

6 Am. Jur. 2d, Attachment and Garnishment, §§ 261 et seq.

7 C.J.S. Attachment, §§ 137, 179-191, 193-195, 346-367.

Posting of redelivery bond by defendant in attachment as waiver of damages for wrongful attachment, 57 A.L.R.2d 1376.

32-08.1-02.1. Prehearing attachment — Issuance of order — Notice of hearing.

A writ of attachment may be issued on the plaintiff’s request and prior to the hearing required under section 32-08.1-02 if the plaintiff’s request is accompanied by an affidavit stating the basis and amount of claim against the defendant and describing facts that constitute grounds for attachment under subdivision a, b, c, or d of subsection 1 of section 32-08.1-03. The court may issue the writ prior to the hearing required under section 32-08.1-02 only if the plaintiff demonstrates the probability of success on the merits, the existence of one or more of the grounds specified in subdivision a, b, c, or d of subsection 1 of section 32-08.1-03, and that, due to extraordinary circumstances, the plaintiff’s interests cannot be protected by an appropriate order of the court, other than by directing the prehearing attachment of property. The defendant must be served immediately after the attachment is completed with a copy of the plaintiff’s request for the writ, a copy of the affidavit and all other documents offered in support of the request, and a notice of the availability of a hearing under section 32-08.1-17.

Source:

S.L. 1991, ch. 355, § 2.

DECISIONS UNDER PRIOR LAW

Note.

The following case was decided under former chapter 32-08.

Disposition of Property.

An action may be commenced on a claim not due and an attachment issued against the property of a debtor if it is alleged that a defendant has disposed of his property. Jordan v. Frank, 1 N.D. 206, 46 N.W. 171, 1890 N.D. LEXIS 24 (N.D. 1890).

Collateral References.

Attachment 9.

6 Am. Jur. 2d, Attachment and Garnishment, §§ 261 et seq.

Debt, what amounts to, within statute providing for attachment before debt is due, 58 A.L.R.2d 1451.

32-08.1-03. Basis for attachment.

  1. Before any writ of attachment may be executed, the plaintiff or someone on the plaintiff’s behalf shall make and attach thereto an affidavit stating the basis and amount of the claim against the defendant, that the same is due upon contract or upon a judgment, and that the affiant knows or has good reason to believe any of the following:
    1. The defendant is absent from this state, or is concealed therein so that summons cannot be served on the defendant.
    2. The defendant has disposed of or concealed or is about to dispose of or conceal the defendant’s property or some part thereof with intent to defraud the defendant’s creditors.
    3. The defendant has removed or is about to remove property out of this state with intent to defraud the defendant’s creditors.
    4. The defendant fraudulently incurred the obligation respecting which the action is brought.
    5. The defendant is not a resident of this state.
    6. The defendant is a foreign corporation or limited liability company or the defendant is a domestic corporation or limited liability company and no officer, manager, or agent thereof on whom to serve the summons exists or resides in this state or can be found.
    7. The action is against a defendant as principal on an official bond to recover money due the state or to some political subdivision thereof, or that the action is against the defendant as principal upon a bond or other instrument given as evidence of debt for or to secure the payment of money embezzled or misappropriated by such defendant as an officer of the state or of a political subdivision thereof.
    8. The action is against a defendant to recover purchase money for personal property sold to the defendant, in which case the property must be specifically described, if one of the conditions under subdivision a, e, or i and one of the conditions under subdivision b or c is also alleged.
    9. The action is against the owner of any motor vehicle for damages alleged to have been caused by the negligence of such owner or the owner’s duly authorized agent, the motor vehicle alleged to have been driven, occupied, or owned by a negligent driver or owner thereof, at the time of such accident, may be attached, if one of the conditions under subdivision a or e and one of the conditions under subdivision b or c is also alleged.
  2. In tort actions the affidavit must state that a claim for relief in tort exists in favor of the plaintiff and against the defendant, that the damages sustained exceed fifty dollars specifying the amount claimed and either:
    1. The defendant is not a resident of this state or that the defendant’s residence is unknown and cannot with due diligence be ascertained; or
    2. The defendant is a foreign corporation or foreign limited liability company.
  3. An action may be maintained and a writ of attachment issued on a demand not yet due in any case mentioned in this section, except the cases mentioned in subdivision e, f, or g of subsection 1 and the same proceedings in the action shall be had and the same affidavit shall be required as in actions upon matured demands except that the affidavit shall state that the debt is to become due. The bond specified in section 32-08.1-05 shall be for three times the amount demanded. In case an attachment is issued before the maturity of the debt and a defense to such attachment is sustained, the court shall render a judgment for damages and costs against the plaintiff.

Source:

S.L. 1977, ch. 301, § 3; 1985, ch. 82, § 74; 1991, ch. 355, § 3; 1993, ch. 54, § 106.

Notes to Decisions

Constitutionality.

This chapter, as it read prior to the 1991 amendments, was held unconstitutional, as it denied due process to debtors. Garrison Mem. Hosp. v. Rayer, 453 N.W.2d 787 (N.D. 1990).

The fact that, under former subdivision 1 (i) of this section, a defendant was about to move to another county without giving security for an alleged debt, without more, was not among the truly unusual “extraordinary situations requiring special protection to a state or creditor interest,” under the test articulated in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969).Garrison Memorial Hosp. v. Rayer, 453 N.W.2d 787, 1990 N.D. LEXIS 81 (N.D. 1990).

In General.

A judicial decree for sale of property to apply the proceeds on an adjudicated obligation is well within the range of equitable powers of a trial court. Martian v. Martian, 399 N.W.2d 849, 1987 N.D. LEXIS 243 (N.D. 1987).

DECISIONS UNDER PRIOR LAW

Note.

The following cases were decided under former chapter 32-08.

Compliance with Statute.

The remedy by attachment is purely statutory, is harsh and arbitrary, condemns without hearing, and can be used only upon substantial compliance with every requirement of the statute. Birchall v. Griggs, 4 N.D. 305, 60 N.W. 842, 1894 N.D. LEXIS 39 (N.D. 1894).

The provisions of this section are mandatory. Dickinson v. First Nat'l Bank, 64 N.D. 273, 252 N.W. 54, 1933 N.D. LEXIS 274 (N.D. 1933).

Sufficiency of Affidavit.

The affidavit of attachment requires no greater particularity of statement than is required in a pleading. Gans v. Beasley, 4 N.D. 140, 59 N.W. 714 (1894), distinguished, Baird v. Holie, 61 N.D. 280, 237 N.W. 786, 790 (1931), explained, Goldstein v. Peter Fox Sons Co., 22 N.D. 636, 135 N.W. 180, 40 L.R.A. (n.s.) 566 (1912), decided prior to the adoption of N.D.R.Civ.P. 12.

An affidavit must be stated in positive and not alternative language. Birchall v. Griggs, 4 N.D. 305, 60 N.W. 842, 1894 N.D. LEXIS 39 (N.D. 1894).

An affidavit for attachment need not state that the defendant has property, real or personal, in the state subject to levy. Hemmi v. Grover, 18 N.D. 578, 120 N.W. 561, 1909 N.D. LEXIS 19 (N.D. 1909); Moen v. Melin, 57 N.D. 630, 223 N.W. 702, 1929 N.D. LEXIS 306 (N.D. 1929).

The exact language of the statute need not be used in an affidavit for attachment, but the facts must be stated so that a conclusion in the language of the statute would necessarily be drawn. Weil v. Quam, 21 N.D. 344, 131 N.W. 244, 1911 N.D. LEXIS 105 (N.D. 1911).

Sufficiency of Complaint.

A complaint under the Declaratory Judgment Act to obtain a declaration of the rights of the plaintiffs and defendant under a written contract for the sale of land did not set forth a proper cause of action for attachment, since it was not an action to recover money. Kohler v. Cole, 79 N.D. 226, 55 N.W.2d 589, 1952 N.D. LEXIS 115 (N.D. 1952).

Collateral References.

Attachment 77, 111-115, 119, 128, 140-158.

6 Am. Jur. 2d, Attachment and Garnishment, §§ 217-260.

7 C.J.S. Attachment, §§ 72, 83, 92-96, 115, 116, 156, 158-169.

Intent to defraud, sufficiency of affidavit respecting, as against objection that it is a mere legal conclusion, 8 A.L.R.2d 578.

Proof of a fraudulently contracted debt or fraudulently incurred liability or obligation within purview of statute authorizing attachment on such grounds, 39 A.L.R.2d 1265, 1268.

Amendment of attachment or garnishment bond, 47 A.L.R.2d 971.

Law Reviews.

Fresh Start Lien Avoidance Under the Bankruptcy Code Utilizing North Dakota Exemptions, 69 N.D. L. Rev. 203 (1993).

32-08.1-04. Amendment to affidavit.

The affidavit required by section 32-08.1-03 may be amended at any time before the trial by the substitution of a new affidavit containing allegations of facts existing at the time of making the former affidavit.

Source:

S.L. 1977, ch. 301, § 4.

32-08.1-05. Bond — Justification.

Before the writ of attachment shall be executed, a bond on the part of the plaintiff in the sum of at least five hundred dollars executed by sufficient surety shall be delivered to the officer, to the effect that if the defendant recovers judgment the plaintiff shall pay all costs that may be awarded to the defendant and all damages which the defendant may sustain by reason of the attachment. The affidavit of the surety annexed to such bond shall state that the surety is a resident of this state and worth double the sum specified in the bond in property therein above the surety’s debts and exclusive of property exempt from execution. No bond is necessary when this state or any political subdivision thereof is plaintiff.

Source:

S.L. 1977, ch. 301, § 5.

DECISIONS UNDER PRIOR LAW

Note.

The following cases were decided under former chapter 32-08.

Amount of Undertaking.

Interest to accrue in the future should not be considered in determining the amount of the undertaking for attachment. Hemmi v. Grover, 18 N.D. 578, 120 N.W. 561, 1909 N.D. LEXIS 19 (N.D. 1909).

Failure to Give Undertakings.

If the clerk issues a warrant of attachment without an undertaking purporting upon its face to be executed by a surety, the attachment is “irregularly issued” and defendant may move to discharge same. Golden Valley County v. Curtin, 52 N.D. 372, 203 N.W. 189, 1925 N.D. LEXIS 35 (N.D. 1925).

Liability of Sureties.

In an action for damages on an undertaking in attachment, the liability of the sureties is strictly construed. Thompson v. Webber, 29 N.W. 671, 4 Dakota 240, 1886 Dakota LEXIS 14 (Dakota 1886).

Where undertaking for attachment furnished by the plaintiff was for a sufficient amount at the time it was furnished, and an amendment to the complaint in no manner changed the cause of action but merely increased the ad damnum, the sureties upon the attachment bond were not released from liability and the subsequent claim of the larger damages did not invalidate the attachment. MacDonald v. Fitzgerald, 42 N.D. 133, 171 N.W. 879, 1919 N.D. LEXIS 119 (N.D. 1919).

Although surety is ordinarily liable only in event principal has been found liable, rule does not apply to surety under attachment laws; attachment surety became liable on undertaking when attachment was declared void, and attachment defendant could bring action against surety without first obtaining judgment against attachment plaintiff. Renner v. J. Gruman Steel Co., 147 N.W.2d 663, 1966 N.D. LEXIS 148 (N.D. 1966).

Promise to Pay Damages and Costs.

The mere promise of the plaintiff to pay all damages and costs, in the event of a defeat, was not an undertaking under the statute where it was not executed by a surety. Golden Valley County v. Curtin, 52 N.D. 372, 203 N.W. 189, 1925 N.D. LEXIS 35 (N.D. 1925).

Sufficiency.

This statute clearly contemplates an undertaking with a surety, the sufficiency of which, however, the defendant may challenge. Golden Valley County v. Curtin, 52 N.D. 372, 203 N.W. 189, 1925 N.D. LEXIS 35 (N.D. 1925).

Collateral References.

Attachment 128-139.

6 Am. Jur. 2d, Attachment and Garnishment, §§ 530-566.

7 C.J.S. Attachment, §§ 138-176.

Amendment of attachment bond, 47 A.L.R.2d 971.

Taxable costs and disbursements as including expenses for bond, 90 A.L.R.2d 448, 464.

32-08.1-06. Additional security.

In case the defendant is not satisfied with the amount specified in the bond or with the surety the defendant may, upon five days’ notice to the plaintiff, apply to a judge for additional security and such judge may require the plaintiff to give and file another bond, to be approved by the judge, in such sum as the judge shall deem proper, not exceeding the appraised value of the property attached. The surety shall justify as provided in section 32-08.1-05, but if there are more than one surety they may be accepted if they are jointly responsible for the required sum.

Source:

S.L. 1977, ch. 301, § 6.

32-08.1-07. Officer’s return — Action on bond.

The officer executing the writ shall return thereon all the officer’s proceedings and within ten days from receipt of the bond shall file the writ, affidavit, and bond with the clerk of the court.

Source:

S.L. 1977, ch. 301, § 7.

32-08.1-08. Directions to sheriff — Several writs — Limitations on seizure.

  1. The sheriff shall without delay serve copies of the writ, affidavit, and bond upon the defendant in the same manner as the summons. In the case of a nonresident, a foreign corporation, or a foreign limited liability company, the sheriff shall serve such copies on any agent of such defendant in the county, if any be known to the sheriff. The court may, or on demand of the defendant shall, appoint a competent appraiser to appraise the property of the defendant which is subject to the writ. Copies of the appraisal, if any, and inventory shall be served upon the defendant.
  2. If two or more writs against the same defendant shall be executed on the same property, an inventory shall be made in but one of the actions, and the sheriff shall endorse on the copy served upon the defendant in the other action a notice that the property attached is the property attached in the action in which the inventory was made, giving the title of such action, and such officer shall state in the officer’s return the fact of such endorsement.
  3. If the defendant has not filed a special answer, pursuant to section 32-08.1-17, within ten days after notice of the issuance of a writ of attachment, the sheriff shall seize, in the sheriff’s county, so much of the property of the defendant as will satisfy the demand of the plaintiff with costs and expenses. The sheriff shall attach real property and perishable property without delay, notwithstanding the right of the defendant to file a special answer.

Source:

S.L. 1977, ch. 301, § 8; 1983, ch. 374, § 1; 1993, ch. 54, § 106.

32-08.1-09. Attachment of real estate.

To attach real estate the sheriff shall file in the office of the recorder a copy of the writ with the sheriff’s certificate that by virtue of the original writ the sheriff has attached all the interest of the named defendant in such real estate, describing the same.

Source:

S.L. 1977, ch. 301, § 9; 2001, ch. 120, § 1.

32-08.1-10. What may be attached — How attached.

All the property of the defendant, not exempt from execution, may be attached. Personal property shall be attached as upon an execution and the provisions respecting the levy of an execution thereon shall be applicable to an attachment.

Source:

S.L. 1977, ch. 301, § 10.

Collateral References.

Liquor license as subject to execution or attachment, 40 A.L.R.4th 927.

Joint bank account as subject to attachment, garnishment, or execution by creditor of one joint depositor, 86 A.L.R.5th 527.

32-08.1-11. Indemnity to sheriff.

If there is reasonable doubt as to the ownership of the property or as to its liability to be attached, the sheriff may require sufficient security from the plaintiff to indemnify the sheriff for attaching such property.

Source:

S.L. 1977, ch. 301, § 11.

32-08.1-12. Sale of perishable property attached or garnished.

When any property taken on a writ of attachment is likely to depreciate in value before the end of the action or the keeping thereof could cause much loss or expense, the court or a judge may order it sold in such manner as the best interests of the parties demand, and the money realized shall be held by the sheriff in lieu of the property sold.

Source:

S.L. 1977, ch. 301, § 12.

DECISIONS UNDER PRIOR LAW

Note.

The following case was decided under former chapter 32-08.

Livestock.

Livestock is not perishable property. American Commercial Co. v. Randolph, 49 N.D. 476, 191 N.W. 779, 1922 N.D. LEXIS 79 (N.D. 1922).

Collateral References.

Attachment 196.

7 C.J.S. Attachment, § 396.

32-08.1-13. Care of property — Collection of debts.

The officer shall deposit with the court the property seized by the officer and the proceeds of such as shall have been sold to answer any judgment which may be recovered in such action; and shall, subject to the direction of the court or judge, collect and deposit with the court all the debts, credits, and effects of the defendant. The retention, protection, and final disposition of the property must be determined by the court.

Source:

S.L. 1977, ch. 301, § 13; 1991, ch. 356, § 1.

Notes to Decisions

Constitutionality.

This chapter, as it read prior to the 1991 amendments, was held unconstitutional, as it denied due process to debtors. Garrison Mem. Hosp. v. Rayer, 453 N.W.2d 787 (N.D. 1990).

DECISIONS UNDER PRIOR LAW

Note.

The following cases were decided under former chapter 32-08.

Appraisement Proceedings.

The officer may make new levies and extend the levy from time to time over sufficient property to satisfy the writ; but until a levy there is no occasion and no foundation for appraisement proceedings to determine the limitation in value under the exemption law. Bates v. Callender, 16 N.W. 506, 3 Dakota 256, 1883 Dakota LEXIS 2 (Dakota 1883), writ of error dismissed, 127 U.S. 781, 32 L. Ed. 326 (U.S. 1887).

Collection of Debt.

An attachment proceeding to establish a lien to aid in the collection of a debt is purely statutory, and the statute must be strictly complied with. Dickinson v. First Nat'l Bank, 64 N.D. 273, 252 N.W. 54, 1933 N.D. LEXIS 274 (N.D. 1933).

Levy from Time to Time.

A warrant of attachment is not rendered functus officio by the fact that a levy has been made thereunder, but the sheriff, from time to time, may levy until the amount due is satisfied or the final judgment is rendered. MacDonald v. Fitzgerald, 42 N.D. 133, 171 N.W. 879, 1919 N.D. LEXIS 119 (N.D. 1919).

Proceeds of Foreclosure Sale.

Money in the possession of the sheriff for the redemption of property sold under a mortgage foreclosure is subject to attachment by the creditor of the holder of the certificate of sale, if no duty rests on the sheriff except to pay the money to such holder. 64 N.D. 727, 256 N.W. 178.

Collateral References.

Attachment 159-176.

6 Am. Jur. 2d, Attachment and Garnishment, §§ 515-521.

7 C.J.S. Attachment, §§ 203-243.

Validity of attachment of chattels within store or building other than private dwelling, made without removing the goods or without making an entry, 22 A.L.R.2d 1276.

Retirement or pension proceeds or annuity payments under group insurance as subject to attachment or garnishment, 28 A.L.R.2d 1213.

Rights of creditors of life insured as to options or other benefits available to him during his lifetime, 37 A.L.R.2d 268.

Estate by entireties: interest of spouse in estate by entireties as subject to attachment lien in satisfaction of his or her individual debt, 75 A.L.R.2d 1172.

Branch bank or main office of bank having branches, attachment and garnishment of funds in, 12 A.L.R.3d 1088.

Family allowance from decedent’s estate as exempt from attachment, garnishment, execution, and foreclosure, 27 A.L.R.3d 863.

Potential liability of insurer under liability policy as subject of attachment, 33 A.L.R.3d 992.

Client’s funds in hands of his attorney as subject of attachment or garnishment by client’s creditor, 35 A.L.R.3d 1094.

32-08.1-14. Bond for release of property — Estoppel.

The defendant may, at any time before judgment, deliver to the officer who attached the defendant’s property a bond executed by two sureties, to the effect that they will, on demand, pay to the plaintiff the amount of the judgment, with all costs, that may be recovered against such defendant in the action, not exceeding the sum specified in the bond with interest. Such a bond shall be in the amount alleged by the plaintiff to be due. The sureties shall justify as provided in section 32-08.1-05, and may be accepted if they are jointly responsible for the required sum.

Source:

S.L. 1977, ch. 301, § 14.

32-08.1-15. Exception to defendant’s sureties — Release of property — Costs.

The officer shall forthwith give the plaintiff a copy of the bond received pursuant to section 32-08.1-14 with notice of the time when the same was delivered to the officer. The plaintiff shall, within three days thereafter, give notice to the officer that the plaintiff objects to the sureties or waives all objections to them. When the plaintiff objects, the sureties shall justify as provided in section 32-08.1-05. The officer shall be responsible for the sufficiency of such sureties and may retain possession of the attached property until they justify or until the objection is waived. Thereafter, the officer shall deliver the property attached to such defendant. If real estate is attached, the sheriff shall file a certificate of the discharge thereof in the office of the recorder. If judgment is for the plaintiff, all the plaintiff’s costs and disbursements on the attachment shall be included in the judgment.

Source:

S.L. 1977, ch. 301, § 15; 2001, ch. 120, § 1.

DECISIONS UNDER PRIOR LAW

Note.

The following cases were decided under former chapter 32-08.

Destruction of Writ.

An undertaking for discharge not only releases the levy but destroys the writ. Fox v. Mackenzie, 1 N.D. 298, 47 N.W. 386, 1890 N.D. LEXIS 39 (N.D. 1890).

Discharge Bond.

The giving of an undertaking to procure a discharge of an attachment does not merely release the levy but destroys the writ itself, and, thereafter, a motion to dissolve the attachment as being irregularly or improvidently issued will not be entertained. Fox v. Mackenzie, 1 N.D. 298, 47 N.W. 386, 1890 N.D. LEXIS 39 (N.D. 1890).

The law authorizing a sheriff, in executing a warrant of attachment, to demand indemnity does not apply to an action to recover on a discharge bond. Ravely v. Isensee, 57 N.D. 286, 221 N.W. 38, 1928 N.D. LEXIS 125 (N.D. 1928).

Growing Crop.

The filing in the office of the register of deeds [now recorder] of notice of abandonment of a levy of attachment on a growing crop does not relieve the attaching creditor from damages subsequently accruing to the crop, where no actual notice was given to the owner. Kelly v. Stockgrowers Credit Corp., 66 N.D. 209, 263 N.W. 717, 1935 N.D. LEXIS 189 (N.D. 1935).

Recovery on Discharge Bond.

The law authorizing a sheriff, in executing a warrant of attachment, to demand indemnity does not apply to an action to recover on a discharge bond. Ravely v. Isensee, 57 N.D. 286, 221 N.W. 38, 1928 N.D. LEXIS 125 (N.D. 1928).

Stay of Proceedings.

An undertaking for discharge of an attachment operates as a stay without any order or direction of the trial court or judge. National Bank v. Hanberg, 10 N.D. 383, 87 N.W. 1006, 1901 N.D. LEXIS 55 (N.D. 1901).

Substitute Bond.

A bond given before the appearance of the defendant in an action to foreclose a lien on property to secure the release thereof, after seizure, is a substitute bond and not a discharge bond. Minneapolis Threshing Mach. Co. v. Warner, 52 N.D. 432, 203 N.W. 197, 1925 N.D. LEXIS 38 (N.D. 1925).

Collateral References.

Attachment 191, 225-279.

6 Am. Jur. 2d, Attachment and Garnishment, §§ 540-561.

7 C.J.S. Attachment, §§ 274-280, 283, 284, 346-391, 476-479, 481-524.

32-08.1-16. Vacation or modification of writ.

The court may, at any time before the trial of the action or a release of the property under section 32-08.1-15, vacate or modify the writ of attachment for irregularity or other sufficient cause, upon five days’ notice of motion. The motion therefor may be combined with a motion to increase the plaintiff’s security under section 32-08.1-06.

Source:

S.L. 1977, ch. 301, § 16.

DECISIONS UNDER PRIOR LAW

Note.

The following cases were decided under former chapter 32-08.

Constitutionality.

Although former N.D.C.C. § 32-08-24 was construed in Page v. Steinke, 60 N.D. 685, 236 N.W. 261 (1931) to place on creditor the burden of showing that grounds for attachment warrant actually existed and thus would appear to be similar in scope to Louisiana statute upheld by U. S. Supreme Court, fact that North Dakota statutes required debtor to file bond to obtain a post-seizure discharge hearing was a significant distinction and was one of several reasons cited for holding that former chapter 32-08 did not achieve the requisite constitutional accommodation of the conflicting interests of the debtor and creditor. Guzman v. Western State Bank, 516 F.2d 125, 1975 U.S. App. LEXIS 15713 (8th Cir. N.D. 1975).

Dissolution of Attachment.

The giving of an undertaking to procure a discharge of an attachment does not merely release the levy but destroys the writ itself, and, thereafter, a motion to dissolve the attachment as being irregularly or improvidently issued will not be entertained. Fox v. Mackenzie, 1 N.D. 298, 47 N.W. 386, 1890 N.D. LEXIS 39 (N.D. 1890).

A defendant cannot move for dissolution of an attachment on the sole ground of his nonownership of the attached property. Gilmore v. Olson, 54 N.D. 633, 210 N.W. 341, 1926 N.D. LEXIS 69 (N.D. 1926).

The dissolution of an attachment may be sought for the reason that the ground of attachment alleged in the affidavit does not exist and did not exist when the affidavit was made. Page v. Steinke, 60 N.D. 685, 236 N.W. 261, 1931 N.D. LEXIS 220 (N.D. 1931).

Growing Crop.

The filing in the office of the register of deeds [now recorder] of notice of abandonment of a levy of attachment on a growing crop does not relieve the attaching creditor from damages subsequently accruing to the crop, where no actual notice was given to the owner. Kelly v. Stockgrowers Credit Corp., 66 N.D. 209, 263 N.W. 717, 1935 N.D. LEXIS 189 (N.D. 1935).

Irregularity.

An attachment which appears to have been “irregularly issued” must be discharged. Golden Valley County v. Curtin, 52 N.D. 372, 203 N.W. 189, 1925 N.D. LEXIS 35 (N.D. 1925).

If a clerk issues the warrant without an undertaking, purporting upon its face to be executed by a surety, the attachment is “irregularly issued” and it is, therefore, proper for defendant to move to discharge the same. Golden Valley County v. Curtin, 52 N.D. 372, 203 N.W. 189, 1925 N.D. LEXIS 35 (N.D. 1925).

Motion to Set Aside.

Writ of attachment will be set aside on motion where summons has not been properly served. Rhode Island Hosp. Trust Co. v. Keeney, 1 N.D. 411, 48 N.W. 341, 1891 N.D. LEXIS 9 (N.D. 1891).

The legality of the levy should not be raised on motion to set aside and dismiss the attachment because of defect in proceedings prior to levy. Thornley v. Lawbaugh, 31 N.D. 651, 143 N.W. 348, 1913 N.D. LEXIS 85 (N.D. 1913).

Vacation of Attachment.

The court may vacate an attachment where the affidavit states that the action to recover damages for deceit was false. Sonnesyn v. Akin, 12 N.D. 227, 97 N.W. 557, 1903 N.D. LEXIS 55 (N.D. 1903).

Collateral References.

Attachment 237-239.

6 Am. Jur. 2d, Attachment and Garnishment, §§ 435-472.

7 C.J.S. Attachment, §§ 491-494.

Appealability, prior to final judgment, of order discharging or vacating attachment or refusing to do so, 19 A.L.R.2d 640.

32-08.1-17. Answer to writ — Trial.

Within ten days after notice of the issuing of a writ of attachment against the defendant’s property, the defendant may, by special answer, deny the existence, at the time of the making of the attachment affidavit, of the material facts stated in the affidavit and may assert undue hardship as a defense. The court shall try the issue so raised before the trial of the action, but in no event later than fourteen days after the writ of attachment is issued. The plaintiff has the burden of proving the conditions for issuance of the prehearing writ of attachment as described in section 32-08.1-02.1. If the defendant has made an assignment for the benefit of the defendant’s creditors, the defendant’s assignee may answer and defend pursuant to this section.

Source:

S.L. 1977, ch. 301, § 17; 1991, ch. 355, § 4.

Notes to Decisions

Constitutionality.

This chapter, as it read prior to the 1991 amendments, was held unconstitutional, as it denied due process to debtors. Garrison Mem. Hosp. v. Rayer, 453 N.W.2d 787 (N.D. 1990).

32-08.1-18. Trial or special answer.

In making its determination of the issue raised by the special answer, the court shall consider any undue hardship on the defendant that would result from an issuance of the warrant. If the court finds for the defendant, the judge presiding shall tax the defendant’s costs of such trial and an order shall be entered dismissing the writ or that the property attached be delivered to the defendant. The jury or the court shall, on the trial of the action or thereafter, assess the damages sustained by the defendant by reason of the taking and detention or sale of the property attached or by reason of any injury thereto. The same, together with the costs so taxed, shall be a setoff to the plaintiff’s demand, and if in excess of it, or the plaintiff fails to recover, the defendant shall have judgment for the amount due. If the court on the trial of such special issue finds for the plaintiff, the presiding judge shall tax the plaintiff’s costs of such trial, and the amount so taxed shall, if the plaintiff recovers, be taxed by the clerk as disbursement in the action. If the defendant or the defendant’s assignee recovers judgment in the action, said costs and the judgment shall be offset.

Source:

S.L. 1977, ch. 301, § 18.

32-08.1-19. Damages — When defendant to recover.

If the defendant prevails in the action or if the action be discontinued, the defendant shall have judgment for the damages sustained by the defendant for any damages to the defendant’s property by reason of the taking and detention or sale thereof.

Source:

S.L. 1977, ch. 301, § 19.

32-08.1-20. Return of property — Damages on dismissal — Entry in recorder’s office.

When the defendant recovers judgment, all the money or property held by any writ of attachment shall be delivered to the defendant, subject to the plaintiff’s rights on appeal, and the defendant may maintain an action on the plaintiff’s bond for the assessed damages sustained by reason of the writ of attachment. Upon the entry of final judgment in favor of the defendant or on satisfaction of a plaintiff’s judgment, the clerk of court shall, if real estate was attached, certify the fact of such judgment or satisfaction, and on filing such certificate with the recorder in any county in which attached lands are situated, such recorder shall enter such certificate upon the records of the recorder’s office in discharge of such attachments.

Source:

S.L. 1977, ch. 301, § 20; 2001, ch. 120, § 1.

Notes to Decisions

Release of Attachment.

Where trial court released attachment on property upon motion by the parties so the property could be sold, and the parties entered into an agreement whereby the proceeds from the sale would be placed in escrow subject to the order of the trial court, the North Dakota attachment law did not apply to the disposition of the escrow funds. McMerty v. Herzog, 702 F.2d 127, 1983 U.S. App. LEXIS 29792 (8th Cir. N.D. 1983).

32-08.1-21. Judgment for plaintiff — How satisfied.

When the plaintiff recovers judgment in the action, the sheriff or officer shall satisfy the same out of the property attached, if sufficient therefor:

  1. By paying over to such plaintiff all money attached or received upon sales of property, or upon any debts or credits, or so much thereof as shall be necessary.
  2. By selling, under such execution as may be issued on such judgment, so much of the attached property, real or personal, as shall be necessary to satisfy the balance unpaid, according to the provisions regulating sales upon execution, except as provided in subsection 4.
  3. If any of the attached property belonging to the defendant is not in the sheriff’s hands, without having been sold or converted into money, by repossessing the same, and for that purpose, the sheriff shall have all the authority which the sheriff had to seize the same under the writ of attachment. Any person who shall willfully conceal or withhold such property from the sheriff shall be liable to double damages at the suit of the party injured.
  4. Until the judgment against the defendant shall be paid, by proceeding to collect the evidences of debt that may have been seized or attached by virtue of the writ of attachment, and to prosecute any bond the sheriff may have taken in the course of such proceedings, and apply the proceeds thereof to the payment of the judgment and costs. When the judgment and all costs of the proceedings shall have been paid, the sheriff, upon reasonable demand, shall deliver over to the defendant the residue of the property attached, or the proceeds thereof.

Source:

S.L. 1977, ch. 301, § 21.

Cross-References.

Liability of sheriff for failure to levy or sell property on writ of execution or attachment, see N.D.C.C. § 11-15-17.

Seizure of property, see N.D.R.Civ.P. 64.

Notes to Decisions

Due Process.

Due process did not require that notice of execution and levy be given to any party taking an interest in the attached real property after the notice of attachment had been filed; due process was satisfied by the filing of the notice of attachment, and any party acquiring an interest after that time took the interest subject to the notice of attachment. Texaco Oil Co. v. Mosser, 299 N.W.2d 191, 1980 N.D. LEXIS 306 (N.D. 1980), overruled, Geostar Corp. v. Parkway Petroleum, 495 N.W.2d 61, 1993 N.D. LEXIS 12 (N.D. 1993).

DECISIONS UNDER PRIOR LAW

Note.

The following cases were decided under former chapter 32-08.

Compliance with Statute.

A lien of an attachment is ineffectual until the levy is made in compliance with the statute. Mott v. Holbrook, 28 N.D. 251, 148 N.W. 1061 (1914), distinguished, Sox v. Miracle, 35 N.D. 458, 160 N.W. 716 (1916), Crosson v. Kartowitz, 43 N.D. 466, 175 N.W. 868, 1919 N.D. LEXIS 69 (N.D. 1919) and Dickinson v. First Nat'l Bank, 64 N.D. 273, 252 N.W. 54, 1933 N.D. LEXIS 274 (N.D. 1933); Zimmerman v. Boynton, 59 N.D. 112, 229 N.W. 3, 1930 N.D. LEXIS 129 (N.D. 1930).

An attachment proceeding to establish a lien to aid in the collection of a debt is purely statutory, and the statute must be strictly complied with. Dickinson v. First Nat'l Bank, 64 N.D. 273, 252 N.W. 54, 1933 N.D. LEXIS 274 (N.D. 1933).

Conditional Jurisdiction.

The levy of a warrant of attachment gives the court a conditional jurisdiction over the subject matter of the action. Goldstein v. Peter Fox Sons Co., 22 N.D. 636, 135 N.W. 180, 1912 N.D. LEXIS 53 (N.D. 1912).

Growing Crop.

The filing of a notice of levy in the office of the register of deeds [now recorder] of the county where the crop is situated, and service on the person having custody of the crop is sufficient levy of attachment on a growing crop. Kelly v. Stockgrowers Credit Corp., 66 N.D. 209, 263 N.W. 717, 1935 N.D. LEXIS 189 (N.D. 1935).

Neglect of Official Duty.

The failure of an officer to deliver a copy of the execution to the person from whom personal property is taken renders the levy void. Langer v. Nultemeier, 55 N.D. 132, 212 N.W. 817, 1926 N.D. LEXIS 44 (N.D. 1926).

The failure of a sheriff to file the required inventory and return within twenty days after the seizure of attached property renders the attachment void. Summerfield v. Paulson, 68 N.D. 161, 278 N.W. 248, 1938 N.D. LEXIS 91 (N.D. 1938).

Notice of Levy.

Service on defendant of a notice of levy of an execution on land is not necessary. Finch, Van Slyck & McConville v. Jackson, 57 N.D. 17, 220 N.W. 130, 1928 N.D. LEXIS 90, 1928 N.D. LEXIS 91 (N.D. 1928).

Personal Property Incapable of Manual Delivery.

A levy on personal property incapable of manual delivery must be made under a warrant of attachment in strict compliance with the statute. Ireland v. Adair, 12 N.D. 29, 94 N.W. 766, 1903 N.D. LEXIS 7 (N.D. 1903).

Personal Property in Safety Deposit Box.

A judgment debtor’s personal property in a safety deposit box leased by him from a bank is subject to levy on execution, whether it is considered to be in possession of such debtor as a lessee or in possession of the bank as bailee. O'Connor v. McManus, 71 N.D. 88, 299 N.W. 22, 1941 N.D. LEXIS 139 (N.D. 1941).

Real Property.

The interest of a vendee under an executory contract for the purchase of school land from the state of North Dakota is subject to levy as real property. Sox v. Miracle, 35 N.D. 458, 160 N.W. 716, 1916 N.D. LEXIS 174 (N.D. 1916).

Where judgment was docketed in the district court and became a lien upon the property of the judgment debtors, including the property covered by the mortgage sought to be foreclosed in that action, notice of levy to be filed and recorded in the office of the register of deeds [now recorder] was not required in order to make a valid levy. Winslow v. Klundt, 51 N.D. 808, 201 N.W. 169, 1924 N.D. LEXIS 85 (N.D. 1924).

A sheriff’s failure to file with the register of deeds [now recorder] a notice of attachment stating the amount of plaintiff’s claim renders the attachment void. Zimmerman v. Boynton, 59 N.D. 112, 229 N.W. 3, 1930 N.D. LEXIS 129 (N.D. 1930).

Where the court’s jurisdiction depends on a valid attachment of a nonresident’s realty, and other portions of the record show the levy void, the import of verity from recitals is destroyed, and the judgment is void. Zimmerman v. Boynton, 59 N.D. 112, 229 N.W. 3, 1930 N.D. LEXIS 129 (N.D. 1930).

Collateral References.

Attachment 159-176, 195, 217-224.

7 C.J.S. Attachment, §§ 203-213, 221, 222, 392-395, 543-547.

Estoppel of or waiver by parties or participants as to irregularities or defects in sale, 2 A.L.R.2d 6, 78.

32-08.1-22. Action by sheriff — Who to prosecute.

The actions herein authorized to be brought by the sheriff or officer may be prosecuted by the plaintiff or under the plaintiff’s direction, upon the delivery by the plaintiff to the sheriff or officer of an undertaking, with two sufficient sureties, to the effect that the plaintiff will indemnify the sheriff or officer for all damages, costs, and expenses thereon not exceeding five hundred dollars in any one action. Such sureties shall, when required by the sheriff or officer, justify by making an affidavit that each is worth double the amount of the penalty named in the undertaking over and above all debts and exemptions.

Source:

S.L. 1977, ch. 301, § 22.

32-08.1-23. Execution after defendant’s death.

If any defendant whose property is attached shall die and the judgment is in favor of the plaintiff, the property attached shall be applied to the payment of the judgment and execution may be issued on such judgment and satisfied out of the property so attached in the same manner as if such defendant were living.

Source:

S.L. 1977, ch. 301, § 23.

32-08.1-24. Stranger may intervene.

Any person not a party to the action, whose property is attached, may, at any time, either before or after judgment, be made a party upon application for the purpose of removing or discharging the attachment. The court may grant such summary relief as shall be just, and may in proper cases try appropriate issues by jury.

Source:

S.L. 1977, ch. 301, § 24.

DECISIONS UNDER PRIOR LAW

Note.

The following cases were decided under former chapter 32-08.

Application of Statute.

The statute applies to a case where the property of a third person is levied upon while in possession of the attachment debtor under such circumstances as to raise a presumption that it is owned by him. Probstfield v. Hunt, 17 N.D. 572, 118 N.W. 226, 1908 N.D. LEXIS 87 (N.D. 1908).

Burden of Proof.

Where both the title and possession of the property levied upon are in dispute, the burden of proof is upon the plaintiff to establish the title and right of possession at the time of the levy. Wipperman Mercantile Co. v. Robbins, 23 N.D. 208, 135 N.W. 785, 1912 N.D. LEXIS 76 (N.D. 1912).

Growing Crop.

The filing in the office of the register of deeds [now recorder] of notice of abandonment of a levy of attachment on a growing crop does not relieve the attaching creditor from damages subsequently accruing to the crop where no actual notice was given to the owner. Kelly v. Stockgrowers Credit Corp., 66 N.D. 209, 263 N.W. 717, 1935 N.D. LEXIS 189 (N.D. 1935).

Indemnity from Attaching Creditor.

A sheriff executing a warrant of attachment in case of an adverse claim may demand indemnity from the attaching creditor. Ravely v. Isensee, 57 N.D. 286, 221 N.W. 38, 1928 N.D. LEXIS 125 (N.D. 1928).

The sheriff may require an indemnifying undertaking from a levying creditor where a third-party claim is asserted, and may release the levy if the undertaking is not furnished. Kelly v. Baird, 64 N.D. 346, 252 N.W. 70, 1934 N.D. LEXIS 205 (N.D. 1934).

Notice.

The giving of the notice prescribed by the statute is not necessary where a sheriff attaches and sells property in the possession of and owned by a third person not named in the writ. Aber v. Twichell, 17 N.D. 229, 116 N.W. 95, 1908 N.D. LEXIS 48 (N.D. 1908).

Sufficiency of Third-Party Claim.

A third-party claim under the provisions of this section sufficiently alleges ownership if it states that at all times, including the time of seizure, the property was and still is the property of the claimants, that the ground of their right and title to the possession of the property is that they purchased the same with their own money and paid therefor, without stating from whom the property was acquired or the consideration paid. Coverdell v. Erickson, 39 N.D. 579, 168 N.W. 367, 1918 N.D. LEXIS 58 (N.D. 1918).

Collateral References.

Attachment 280 et seq.

6 Am. Jur. 2d, Attachment and Garnishment, §§ 587 et seq.

7 C.J.S. Attachment, §§ 409 et seq.

CHAPTER 32-09 Garnishment [Repealed]

[Repealed by S.L. 1981, ch. 350, § 2]

Note.

For present provisions, see chapter 32-09.1.

CHAPTER 32-09.1 Garnishment

32-09.1-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Defendant” means every judgment debtor.
  2. “Disposable earnings” means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by other law to be withheld.
  3. “Earnings” means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program. “Earnings” does not include social security benefits or veterans’ disability pension benefits, except when the benefits are subject to garnishment to enforce any order for the support of a dependent child. “Earnings” includes military retirement pay.
  4. “Person” includes an individual, an individual’s personal representative or other fiduciary, any two or more persons having a joint or common interest, a partnership, an association, a corporation, a limited liability company, and any other legal or commercial entity.
  5. “Plaintiff” means every judgment creditor.

Source:

S.L. 1981, ch. 350, § 1; 1985, ch. 350, § 2; 1993, ch. 54, § 106.

Notes to Decisions

Earnings.

The term “earnings” does not have the broad dictionary meaning that includes “business profits.” Friedt v. Moseanko, 498 N.W.2d 129, 1993 N.D. LEXIS 57 (N.D. 1993).

Earnings.

Under N.D.C.C. § 32-09.1-01(3), a client’s payments to an attorney’s professional corporation is not compensation paid or payable for personal services. Because fees paid or payable to a professional law corporation are not earnings under the statute, as a matter of law a 10-day notice is not required under N.D.C.C. § 32-09.1-04 before issuing a garnishee summons. PHI Fin. Servs. v. Johnston Law Office, P.C., 2020 ND 22, 937 N.W.2d 885, 2020 N.D. LEXIS 7 (N.D. 2020).

Collateral References.

Garnishment of funds payable under building and construction contract, 16 A.L.R.5th 548.

Joint bank account as subject to attachment, garnishment, or execution by creditor of one joint depositor, 86 A.L.R.5th 527.

Law Reviews.

States — Federal Law as Superseding State Legislation — North Dakota Garnishment and Execution of Judgment Statutes Are Preempted Insofar as They Frustrate the Consumer Credit Protection Act, 50 N.D. L. Rev. 762 (1974).

North Dakota’s New Rules Respecting Garnishment and the Property Exempt Therefrom, 58 N.D. L. Rev. 183 (1982).

32-09.1-02. Creditors may proceed by garnishment.

Any creditor is entitled to proceed by garnishment in any court having jurisdiction of the subject of the action against any person, any public corporation, the United States, the state of North Dakota, or any institution, department, or agency of the state, indebted to or having any property in possession or under control, belonging to the creditor’s debtor after securing a judgment against the debtor in a court of competent jurisdiction, in the cases, upon the conditions, and in the manner prescribed in this chapter. A garnishment action brought pursuant to this chapter is the exclusive procedure which may be used to execute on earnings of a debtor while those earnings are held by a third-party employer.

Source:

S.L. 1981, ch. 350, § 1; 1983, ch. 375, § 1.

Cross-References.

Seizure of property, see N.D.R.Civ.P. 64.

Notes to Decisions

In General.

A judgment creditor may proceed by garnishment against any person after securing a judgment against such person in a court of competent jurisdiction. In re Da-Sota Elevator Co., 135 B.R. 873, 1991 Bankr. LEXIS 1976 (Bankr. D.N.D. 1991).

Legislative Intent.

The elimination of the execution requirement in the garnishment statutes suggests the legislature favors cost reduction and simplification of the process for both parties. Mid-Dakota Clinic, P.C. v. Kolsrud, 1999 ND 244, 603 N.W.2d 475, 1999 N.D. LEXIS 255 (N.D. 1999).

Out of State Judgment.

North Dakota law applied to wages and lease payments received by debtor, and subject to garnishment, as a result of an Arizona judgment transferred to North Dakota through N.D.C.C. ch. 28-20.1. American Standard Life & Accident Ins. Co. v. Speros, 494 N.W.2d 599, 1993 N.D. LEXIS 1 (N.D. 1993).

DECISIONS UNDER PRIOR LAW

Counties.

The terms “any public corporation” and “agency of the state” as used in this section includes a county. United Accounts v. Dachtler, 100 N.W.2d 93, 1959 N.D. LEXIS 119 (N.D. 1959).

Death of Defendant.

Garnishment proceedings are dissolved by the death of the defendant before judgment is rendered. First Nat'l Bank v. Rohlik, 66 N.D. 72, 262 N.W. 458, 1935 N.D. LEXIS 173 (N.D. 1935).

Determination of Issues.

Plaintiff desiring to proceed to trial with the garnishment action and obtain a determination of the issues raised therein must first obtain a judgment in the main action. First Nat'l Bank v. Young, 63 N.D. 667, 249 N.W. 771, 1933 N.D. LEXIS 221 (N.D. 1933).

Principal and Agent.

An agent may be liable for property in his possession belonging to his principal through garnishment proceedings. Dakota Nat'l Bank v. Brodie, 46 N.D. 247, 176 N.W. 738, 1920 N.D. LEXIS 1 (N.D. 1920).

Proceedings in Another State.

In an action against A in one state, the pendency of garnishment proceedings against A in another state is no defense if it appears that at the time the actions were commenced A knew that the defendant in the garnishment proceedings instituted did not own the claim against A, so that A had a perfect defense in the garnishment proceedings. Purcell v. St. Paul Fire & Marine Ins. Co., 5 N.D. 100, 64 N.W. 943 (N.D. 1895).

Situs of Debt.

The situs of a debt for the purpose of garnishment is not necessarily the domicile of the creditor. Bingenheimer Mercantile Co. v. Weber, 49 N.D. 312, 191 N.W. 620, 1922 N.D. LEXIS 57 (N.D. 1922).

Title to Property or Indebtedness.

In a garnishment action, plaintiff’s right to recover against the garnishee is predicated entirely upon defendant’s right to recover in his own name, and for his own use, against the garnishee. Unless the defendant can so recover, neither can the plaintiff. Shortridge v. Sturdivant, 32 N.D. 154, 155 N.W. 20, 1915 N.D. LEXIS 50 (N.D. 1915).

The plaintiff in a garnishment action can obtain no greater or better title to the property or indebtedness garnished than that possessed by the defendant in the main action. Hatcher v. Plumley, 38 N.D. 147, 164 N.W. 698, 1917 N.D. LEXIS 24 (N.D. 1917).

A plaintiff cannot place himself, by garnishment, in a position superior to defendant’s position. Retterath v. Smith, 60 N.D. 83, 232 N.W. 606, 1930 N.D. LEXIS 211 (N.D. 1930).

Venue of Action.

A garnishment action is ancillary to the main action, and should be brought in the county in which the main action is brought. Ruchverg v. Russell, 71 N.D. 658, 3 N.W.2d 459, 1942 N.D. LEXIS 100 (N.D. 1942).

The statutes relating to the place of trial of civil actions are not changed or affected by providing for a garnishment action. Ruchverg v. Russell, 71 N.D. 658, 3 N.W.2d 459, 1942 N.D. LEXIS 100 (N.D. 1942).

Wage Earner Exemption.

The exemption which may be claimed by a wage earner in a garnishment suit ancillary to an action to enforce the collection of a bill for groceries and provisions was fixed by former N.D.C.C. §§ 32-09-01, 32-09-02, and 32-09-03 (see now this section), and N.D.C.C. § 28-25-11 relating to exemptions from execution has no application. Radke v. Padgett, 49 N.D. 405, 192 N.W. 97, 1922 N.D. LEXIS 70 (N.D. 1922).

Collateral References.

Garnishment 1, 11.

6 Am. Jur. 2d, Attachment and Garnishment, §§ 45 et seq.

38 C.J.S. Garnishment, §§ 19-22.

Residence of partnership for purposes of statutes authorizing garnishment on grounds of nonresidence, 9 A.L.R.2d 471.

What is an action for “debt” within garnishment statute, 12 A.L.R.2d 787.

Foreign attachment or garnishment as available in action by nonresident against nonresident or foreign corporation upon a foreign cause of action, 14 A.L.R.2d 420.

Retirement or pension proceeds or annuity payments under group insurance as subject to attachment or garnishment, 28 A.L.R.2d 1213.

Rights of creditors of life insured as to options or other benefits available to him during his lifetime, 37 A.L.R.2d 268.

Right of garnishee, other than bank holding deposit, to set off claims not due or certain when garnishment is served, 57 A.L.R.2d 700.

Sharecropper’s share in crop wholly or partly unharvested as subject to garnishment, 82 A.L.R.2d 858.

Indebted to garnishee-employer, garnishment of salary, wages, or commissions where defendant debtor is, 93 A.L.R.2d 995.

Funds deposited in court as subject of garnishment, 1 A.L.R.3d 936.

Branch bank or main office of bank having branches, attachment and garnishment of funds in, 12 A.L.R.3d 1088.

Client’s funds in hands of his attorney as subject of attachment or garnishment by client’s creditor, 35 A.L.R.3d 1094.

Liability insurer’s potential liability for failure to settle claim against insured as subject to garnishment by insured’s judgment creditors, 60 A.L.R.3d 1190.

Executor or administrator, garnishment against, by creditor of estate, 60 A.L.R.3d 1301.

Banks: post-Snidach status of banker’s right to set off bank’s claim against depositor’s funds, 65 A.L.R.3d 1284.

Law Reviews.

Sovereign Immunity — Judicial Abrogation of North Dakota’s Sovereign Immunity Results in Its Possible Legislative Reassertion and Legislation to Provide Injured Parties with a Remedy for the Torts Committed by the State or Its Agents, 71 N.D. L. Rev. 761 (1995).

32-09.1-03. Restriction on garnishment of earnings.

  1. The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment may not exceed the lesser of:
    1. Twenty-five percent of disposable earnings for that week.
    2. The amount by which disposable earnings for that week exceed forty times the federal minimum hourly wage prescribed by section 6(a)(1) of the Fair Labor Standards Act of 1938, as amended [Pub. L. 95-151; 91 Stat. 1245; 29 U.S.C. 206] or any equivalent multiple thereof prescribed by regulation by the secretary of labor in case of earnings for any pay period other than a week, in effect at the time the earnings are payable.
  2. The maximum amount subject to garnishment under subsection 1 for any workweek must be reduced by twenty dollars for each dependent family member residing with the garnishment debtor. Within ten days after receipt of the garnishment summons, the garnishment debtor shall provide to the employer a list, signed under penalty of perjury by the garnishment debtor, of the names and social security numbers, if any, of the dependents who reside with the garnishment debtor. If the garnishment debtor fails to provide the list, it is presumed that the garnishment debtor claims no dependents, but the garnishment debtor may provide the list at a later date, in which case the exemptions claimed will be in effect for amounts subject to garnishment after the date the list is provided.
  3. The restrictions of subsection 1 do not apply in the case of:
    1. Any order of any court for the support of any person.
    2. Any order of any court of bankruptcy under chapter XIII of the Bankruptcy Act.
    3. Any debt due for any state or federal tax.
  4. The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person may not exceed:
    1. If such individual is supporting a spouse or dependent child other than a spouse or child with respect to whose support such order is used, fifty percent of the individual’s disposable earnings for that week; and
    2. If such individual is not supporting a spouse or dependent child other than a spouse or child with respect to whose support such order is used, sixty percent of the individual’s disposable earnings for that week;
  5. No court of this state may make, execute, or enforce any order or process in violation of this section.

except that, with respect to the disposable earnings of any individual for any workweek, the fifty percent specified in subdivision a must be deemed to be fifty-five percent and the sixty percent specified in subdivision b must be deemed to be sixty-five percent, if and to the extent that the earnings are subject to garnishment to enforce a support order with respect to a period which is prior to the twelve-week period which ends with the beginning of such workweek.

Source:

S.L. 1981, ch. 350, § 1; 1989, ch. 411, § 1; 1991, ch. 357, § 1; 2007, ch. 289, § 1.

Cross-References.

Wages — Exemption restricted, see N.D.C.C. § 28-22-18.

Notes to Decisions

Applicability.

North Dakota law applied to wages and lease payments received by debtor, and subject to garnishment, as a result of an Arizona judgment transferred to North Dakota through N.D.C.C. ch. 28-20.1. American Standard Life & Accident Ins. Co. v. Speros, 494 N.W.2d 599, 1993 N.D. LEXIS 1 (N.D. 1993).

Income that a N.D.C.C. ch. 7 debtor earned through self-employment in a consulting business was not considered wages under N.D.C.C. § 28-22-18, and the debtor could not claim the income earned pre-petition as an exemption under N.D.C.C. § 32-09.1-03. In re Domitrovich, 2008 Bankr. LEXIS 99 (Bankr. D.N.D. Jan. 10, 2008).

DECISIONS UNDER PRIOR LAW

Law Governing.

The exemption which may be claimed by a wage earner in a garnishment suit ancillary to an action to enforce the collection of a bill for groceries and provisions was fixed by former N.D.C.C. §§ 32-09-01, 32-09-02, and 32-09-03 (see now this section), and N.D.C.C. § 28-25-11 relating to exemptions from execution has no application. Radke v. Padgett, 49 N.D. 405, 192 N.W. 97, 1922 N.D. LEXIS 70 (N.D. 1922).

Purpose of Exemption.

The provision of 1925 Supp., § 7567, that wages or salary of the head of a family residing in the state to the amount of fifteen dollars per week should be exempt from garnishment, was intended to give immediate relief from any hardship which might result from tying up wages due the head of a family pending a garnishment proceeding, but it was not intended to deprive defendant of any exemptions which he might claim in his defense to the garnishment proceedings in court. Imperial Elevator Co. v. Warren, 56 N.D. 329, 217 N.W. 523, 1928 N.D. LEXIS 220 (N.D. 1928).

Collateral References.

Exemptions 48, 49.

30 Am Jur 2d Executions and Enforcement of Judgments § 566; 31 Am Jur 2d Exemptions § 47; 6 Am Jur 2d Attachment and Garnishment §§ 174-182.

35 C.J.S. Exemptions, §§ 43, 47-50.

32-09.1-04. Notice before garnishment of earnings — Notice of renewal of garnishment of earnings.

  1. At least ten days before the issuance of any garnishee summons against the earnings of any person, the creditor shall serve upon the debtor a notice that a garnishee summons may be issued. The notice must be served personally or by first-class mail. Failure to serve the notice renders any subsequent garnishment void. The notice must be in substantially the following form:
  2. As an alternative to subsection 1, if a creditor renews an expiring continuing lien on wages under section 32-09.1-21, at least ten days but no more than twenty days before the expiration of the continuing lien on wages, the creditor may serve upon the debtor a notice that a garnishee summons may be reissued for a continuing lien on wages under section 32-09.1-21. The notice must be served personally or by first-class mail. Failure to serve the notice renders any subsequent garnishment void. The notice must be in substantially the following form:
  3. In addition to the notice required under subsection 1 or 2, the creditor shall serve a garnishment debtor’s list in substantially the following form under the caption of the case:

To: Date: Debtor Please take notice that a garnishee summons that will require part of your wages to be withheld may be served upon your employer, without any further court proceedings or notice to you, at any time after ten days following the date of this notice. For each dependent family member residing with you, the amount subject to garnishment for any workweek may be reduced by twenty dollars, if within ten days after receipt of the garnishee summons you provide to your employer a list signed by you, under penalty of perjury, of the dependent family members residing with you and their social security numbers, if any. If you provide the list of dependents after the ten-day period, the exemptions you claim will apply only to the amounts subject to garnishment after the date you provide the list. You may wish to contact the undersigned judgment creditor or attorney to arrange for the settlement of the debt, which is $. Judgment Creditor Address

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To: Date: Debtor Please take notice that a garnishee summons that will require part of your wages to be withheld may be served upon your employer without any further court proceedings or notice to you. This action is a renewal of the current garnishment order for this case. For each dependent family member residing with you, the amount subject to garnishment for any workweek may be reduced by twenty dollars, if within ten days after receipt of the garnishee summons you provide to your employer a list signed by you, under penalty of perjury, of the dependent family members residing with you and their social security numbers, if any. If you provide the list of dependents after the ten-day period, the exemptions you claim will apply only to the amounts subject to garnishment after the date you provide the list. You may wish to contact the undersigned judgment creditor or attorney to arrange for the settlement of the debt, which is $. Judgment Creditor Address

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To: Garnishee I, under penalty of perjury, (garnishment debtor) certify and affirm that the following persons are my dependents and they reside in my household and I claim the garnishment exemptions as provided by NDCC 32-09.1-03(2): NameSocial Security Number Dated this day of , . Garnishment Debtor

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Source:

S.L. 1981, ch. 350, § 1; 1991, ch. 357, § 2; 2005, ch. 296, § 1; 2007, ch. 289, § 2.

Notes to Decisions

Garnishee.

Where the creditor is garnishing wages, the garnishee is the debtor’s employer. In re Heilman, 39 B.R. 492, 1984 Bankr. LEXIS 5809 (Bankr. D.N.D. 1984).

Issuance Date of Garnishee Summons.

The issuance of the garnishee summons is construed to be the date the summons is served upon the debtor’s employer. In re Heilman, 39 B.R. 492, 1984 Bankr. LEXIS 5809 (Bankr. D.N.D. 1984).

Notice.

Under N.D.C.C. § 32-09.1-01(3), a client’s payments to an attorney’s professional corporation is not compensation paid or payable for personal services. Because fees paid or payable to a professional law corporation are not earnings under the statute, as a matter of law a 10-day notice is not required under N.D.C.C. § 32-09.1-04 before issuing a garnishee summons. PHI Fin. Servs. v. Johnston Law Office, P.C., 2020 ND 22, 937 N.W.2d 885, 2020 N.D. LEXIS 7 (N.D. 2020).

Where Garnishee Is Interested Person.

Employer-garnishee in this particular garnishment action was an interested person and therefore not qualified under the rules to personally serve papers upon the employee-debtor. In re Heilman, 39 B.R. 492, 1984 Bankr. LEXIS 5809 (Bankr. D.N.D. 1984).

Collateral References.

Garnishment 90-103.

6 Am. Jur. 2d, Attachment and Garnishment, §§ 387, 388.

38 C.J.S. Garnishment, §§ 149-165.

Garnishee’s duty to give debtor notice of garnishment prior to delivery of money without judgment against the garnishee on the debt, 36 A.L.R.4th 824.

Sufficiency, as to content, of notice of garnishment required to be served upon garnishee, 20 A.L.R.5th 229.

32-09.1-05. Service on office of management and budget — Fees.

Service upon the state of North Dakota, or any state institution, department, or agency, as garnishee, may be made upon the director of the office of management and budget, or the director’s authorized designee, in the manner provided by law for service in garnishment proceedings, including the fee to be tendered and paid the office of management and budget for making and filing an affidavit of disclosure in the amount of twenty-five dollars. The fee must be deposited in the state treasury.

Source:

S.L. 1981, ch. 350, § 1; 2005, ch. 297, § 1; 2011, ch. 245, § 1.

Effective Date.

The 2011 amendment of this section by section 1 of chapter 245, S.L. 2011 became effective April 18, 2011, pursuant to an emergency clause in section 2 of chapter 245, S.L. 2011, as added by section 23, chapter 41, S.L. 2011.

DECISIONS UNDER PRIOR LAW

Time of Filing.

Under 1925 Supp., § 7571a2, summons and affidavit for garnishment could be filed in the office of the clerk of the court in which the garnishment proceeding was commenced before making service on garnishee. Storing v. Stutsman, 56 N.D. 531, 218 N.W. 223, 1928 N.D. LEXIS 168 (N.D. 1928).

32-09.1-06. Garnishee summons.

In any action in a court of record for the recovery of money, at any time after judgment, a garnishee summons may be issued against any third person as provided in this chapter. The plaintiff and defendant shall be designated. The person against whom the summons is issued shall be designated garnishee.

Source:

S.L. 1981, ch. 350, § 1.

32-09.1-07. Form of summons and notice.

  1. The garnishee summons must state:
    1. That the garnishee shall serve upon the plaintiff or the plaintiff’s attorney within twenty days after service of the garnishee summons:
      1. A written disclosure, under oath, of indebtedness to the defendant; and
      2. Answers, under oath, to all written interrogatories that are served with the garnishee summons.
    2. The full name of the defendant, the defendant’s place of residence, the date of the entry of judgment against the defendant, the total amount of the judgment which remains unpaid, and the retention amount. The retention amount is the sum of the amount of the judgment which remains unpaid, one hundred twenty-five dollars, and an amount equal to nine months of interest on the amount of the judgment which remains unpaid.
    3. That the garnishee shall retain property, earnings, or money in the garnishee’s possession pursuant to this chapter until the plaintiff causes a writ of execution to be served upon the garnishee or until the defendant authorizes release to the plaintiff.
    4. That after the expiration of the period of time specified in section 32-09.1-20, the garnishee shall release all retained property, earnings, and money to the defendant and is discharged and relieved of all liability on the garnishee summons.
    5. That an employer may not discharge an employee because the employee’s property, earnings, or money are subject to garnishment.
    6. That any assignment of wages made by the defendant or indebtedness to the garnishee incurred within ten days before the receipt of notice of the first garnishment on the underlying debt is void.
    7. That the defendant must provide to the garnishee within ten days after receipt of the garnishee summons a list of the dependent family members who reside with the defendant and their social security numbers, if any, to have the maximum amount subject to garnishment reduced under subsection 2 of section 32-09.1-03.
    8. That failure of the defendant to provide a list to the garnishee within ten days after receipt of the garnishee summons is conclusive with respect to whether the defendant claims no family members.
  2. Under subdivision a of subsection 1, the plaintiff may not require the garnishee to disclose indebtedness or property of the defendant in the garnishee’s possession or under the garnishee’s control to the extent that the indebtedness or property exceeds the retention amount.
  3. The garnishee summons and notice to defendant must be substantially in the following form:

State of North Dakota County of In Court ss. Plaintiff against Defendant and Garnishee Garnishee Summons and Notice to Defendant The State of North Dakota to the above-named Garnishee: You shall serve upon the plaintiff or the plaintiff’s attorney, within twenty days after service of this summons upon you, a written disclosure, under oath, setting forth the amount of any debt you may owe to the defendant, (give full name and residence of defendant) and a description of any property, money, or effects owned by the defendant which are in your possession. Your disclosure need not exceed $. (Enter retention amount.) The date of entry of the judgment against the defendant was (enter date of entry of plaintiff’s judgment) and the amount of the judgment that remains unpaid is $. The defendant shall provide you with a list of the names of dependent family members who reside with the defendant and their social security numbers if the defendant desires to have the garnishment amount reduced under subsection 2 of . Failure of the defendant to provide the list to you is conclusive to establish that the defendant claims no dependent family members reside with the defendant. section 32-09.1-03 Failure to disclose and withhold may make you liable to the plaintiff for the sum of $. (Enter the retention amount.) You shall retain the defendant’s nonexempt property, money, earnings, and effects in your possession until a writ of execution is served upon you, until the defendant authorizes release to the plaintiff, or until the expiration of 360 days from the date of service of this summons upon you. If no writ of execution has been served upon you or no agreement has been made for payment within 360 days, the garnishment ends and any property or funds held by you must be returned to the defendant if the defendant is otherwise entitled to their possession. Any assignment of wages by the defendant or indebtedness to you incurred by the defendant within ten days before the receipt of the first garnishment on a debt is void and should be disregarded. You may not discharge the defendant because the defendant’s earnings are subject to garnishment. Dated , . By: NOTICE TO DEFENDANT To: The garnishee summons, garnishment disclosure form, and written interrogatories (strike out if not applicable), that are served upon you, were also served upon , the garnishee. (Attorneys for Plaintiff) (Address) (Telephone)

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Source:

S.L. 1981, ch. 350, § 1; 1991, ch. 357, § 3; 1991 Sp., ch. 885, § 1; 1999, ch. 51, § 17; 1999, ch. 302, § 1; 2003, ch. 278, § 2; 2007, ch. 289, § 3; 2007, ch. 171, § 1.

Notes to Decisions

Right to Claim Exemptions.

There is no statutory requirement to notify a debtor of the right to claim exemptions when the garnishee summons is served on the debtor, comparable to the requirement for an execution levy. Friedt v. Moseanko, 498 N.W.2d 129, 1993 N.D. LEXIS 57 (N.D. 1993).

Collateral References.

Garnishment 93.

6 Am. Jur. 2d, Attachment and Garnishment, §§ 374-388.

38 C.J.S. Garnishment, § 152.

Sufficiency, as to content, of notice of garnishment required to be served upon garnishee, 20 A.L.R.5th 229.

32-09.1-08. Service.

  1. The garnishee summons and notice to defendant shall be served upon the garnishee in the same manner as other summons in that court of record except that service must be personal.
  2. Service of a garnishee summons and disclosure statement upon a bank or credit union must be made by delivery of the summons and disclosure statement to a specifically named president or vice president of the bank or credit union or to the registered agent for service of process of the bank or credit union. Delivery of the summons and disclosure statement to the specifically named individual may be in hand as established by the sworn affidavit of the individual who delivered the summons and disclosure statement or by any form of mail or third-party commercial delivery service, if delivery is restricted to the named individual or registered agent and the sender receives a receipt signed by that individual or registered agent.
  3. A plaintiff shall serve with the garnishee summons a disclosure form, substantially as set out in this chapter. The plaintiff may also serve interrogatories with the garnishee summons. A copy of the garnishee summons and copies of all other papers served on the garnishee must be served personally upon the defendant in accordance with the North Dakota Rules of Civil Procedure for personal service or served by first-class mail not later than ten days after service is made upon the garnishee. A single garnishee summons may be addressed to two or more garnishees but must state whether each is summoned separately or jointly.

Source:

S.L. 1981, ch. 350, § 1; 1991, ch. 358, § 1; 2013, ch. 252, § 1.

Effective Date.

The 2013 amendment of this section by section 1 of chapter 252, S.L. 2013 became effective April 11, 2013, pursuant to an emergency clause in section 2 of chapter 252, S.L. 2013.

Notes to Decisions

Garnishee.

Where the creditor is garnishing wages, the garnishee is the debtor’s employer. In re Heilman, 39 B.R. 492, 1984 Bankr. LEXIS 5809 (Bankr. D.N.D. 1984).

Where Garnishee Is Interested Person.

Employer-garnishee in this particular garnishment action was an interested person and therefore not qualified under the rules to personally serve papers upon the employee-debtor. In re Heilman, 39 B.R. 492, 1984 Bankr. LEXIS 5809 (Bankr. D.N.D. 1984).

DECISIONS UNDER PRIOR LAW

Failure to Serve.

The law does not authorize a justice of the peace to issue a second summons in a case where the first summons fails to be served in time, nor does such right exist in a case where a garnishment action has been instituted ancillary to an ordinary action in justice court. Searl v. Shanks, 9 N.D. 204, 82 N.W. 734, 1900 N.D. LEXIS 210 (N.D. 1900).

Joining Issue.

Although this section provides that “unless the garnishee summons is so served on the defendant * * * the service on the garnishee shall become void and of no effect from the beginning”, this does not prevent the defendant from joining issue on what had been done. Roe v. Hetherington, 74 N.D. 692, 24 N.W.2d 56, 1946 N.D. LEXIS 93 (N.D. 1946).

Validity of Service.

The garnishment action is instituted by service of the garnishee summons and affidavit for garnishment upon the garnishee, but such service becomes null and void unless these papers are, also, served upon the defendant either before or within ten days after service on the garnishee. Park, Grant & Morris v. Nordale, 41 N.D. 351, 170 N.W. 555, 1918 N.D. LEXIS 150 (N.D. 1918); Citizens' State Bank v. Smeland, 48 N.D. 466, 184 N.W. 987, 1921 N.D. LEXIS 65 (N.D. 1921).

Waiver of Service.

The defendant may waive the service of the garnishment papers upon him. Roe v. Hetherington, 74 N.D. 692, 24 N.W.2d 56, 1946 N.D. LEXIS 93 (N.D. 1946).

Collateral References.

Garnishment 95, 101.

6 Am. Jur. 2d, Attachment and Garnishment, §§ 381-386.

38 C.J.S. Garnishment, §§ 156, 164.

Who may serve writ, summons, or notice of garnishment, 75 A.L.R.2d 1437.

Law Reviews.

The Proposed North Dakota Rules of Civil Procedure, 32 N.D. L. Rev. 88 (1956).

32-09.1-09. Disclosure.

  1. Within the time as limited in the garnishee summons, the garnishee shall serve upon the plaintiff or the plaintiff’s attorney written answers, under oath, to the questions in the garnishment disclosure form and to any written interrogatories that are served upon the garnishee. The amount of the garnishee’s disclosure need not exceed the retention amount. The written answers may be served personally or by mail. If disclosure is by a corporation or limited liability company, it must be verified by an officer, a manager, or an agent having knowledge of the facts.
  2. Disclosure must state:
    1. The amount of disposable earnings earned or to be earned within the defendant’s pay periods which may be subject to garnishment and all of the garnishee’s indebtedness to the defendant.
    2. Whether the garnishee held, at the time, the title or possession of or any interest in any personal property or any instruments or papers relating to any property belonging to the defendant or in which the defendant is interested. If the garnishee admits any interest or any doubt respecting the interest, the garnishee shall set forth a description of the property and the facts concerning the property and the title, interest, or claim of the defendant in or to the property.
    3. If the garnishee claims any setoff or defense or claim or lien to disposable earnings, indebtedness, or property, the garnishee shall disclose the amount and the facts.
    4. Whether the defendant claims any exemption from execution or any other objection, known to the garnishee or the defendant, against the right of the plaintiff to apply upon demand the debt or property disclosed.
    5. If other persons make claims to any disposable earnings, debt, or property of the defendant, the garnishee shall disclose the names and addresses of the other claimants and, so far as known, the nature of their claims.
  3. A garnishment disclosure form must be served upon the garnishee. The disclosure must be substantially in the following form, subject to subsection 3 of section 32-09.1-03:

State of North Dakota County of Plaintiff vs. Defendant and Garnishee In Court ss. Garnishment Disclosure I am the of the garnishee and duly authorized to disclose for the garnishee. On , , the time of service of garnishee summons on the garnishee, there was due and owing the defendant from the garnishee the following: 1. Earnings. For the purposes of garnishment, “earnings” means compensation payable for personal service whether called wages, salary, commission, bonus, or otherwise, and includes periodic payments under a pension or retirement program. “Earnings” does not include social security benefits or veterans’ disability pension benefits, except when the benefits are subject to garnishment to enforce any order for the support of a dependent child. “Earnings” includes military retirement pay. “Disposable earnings” means that part of the earnings of an individual remaining after the deduction from those earnings of amounts required by law to be withheld. If the garnishee summons was served upon you at a time when earnings from a prior completed pay period were owing but not paid, complete the following disclosure for earnings from both the past pay period and the current pay period. 2. Money. Any amounts due and owing to defendant from the garnishee, except for earnings. (amount and facts) 3. Property. Any personal property, instruments, or papers belonging to the defendant and in the possession of the garnishee. (description, estimated value, and facts) 4. Adverse interest and setoff. Any setoff, defense, lien, or claim by the garnishee or other persons by reason of ownership or interest in the defendant’s property. You must state the name and address and the nature of that person’s claim if known. (Any assignment of wages made by the defendant or any indebtedness to a garnishee within ten days before the receipt of the first garnishment on a debt is void and should be disregarded.) 5. Dependent. Any family member of the defendant who is residing in the defendant’s residence. (If properly claimed after receipt of the garnishee summons.) 6. Earnings worksheet: a. Total earnings in pay period b. Federal tax c. State tax d. FICA (social security/Medicare) e. Total deductions (lines b+c+d) f. Disposable earnings (line a less line e) g. Twenty-five percent of line f h. Minimum wage exemption (minimum wage times forty hours times number of weeks in pay period) i. Line f less line h j. Line g or line i (whichever is less) k. Dependent exemption (twenty dollars per dependent per week, if claimed) l. Adverse interest or setoff m. Total of lines k and l n. Line j less line m (the amount of earnings subject to garnishment) 7. Total of property, earnings, and money. The garnishee shall add the total of property, earnings, and money and if this sum is ten dollars or more, the garnishee shall retain this amount, not to exceed the retention amount identified by the plaintiff in the garnishee summons. Signature Garnishee or Authorized Representative of Garnishee Title Subscribed and sworn to before me on , . Notary Public

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Source:

S.L. 1981, ch. 350, § 1; 1985, ch. 350, § 3; 1991, ch. 357, § 4; 1993, ch. 54, § 106; 1999, ch. 51, § 18; 2001, ch. 306, § 1; 2005, ch. 298, § 1; 2007, ch. 289, § 4; 2007, ch. 171, § 2.

DECISIONS UNDER PRIOR LAW

Application of Statute.

Where plaintiff never took any issue with the statements, allegations, or matter set up in affidavits of garnishee, all of the statements in the affidavits were conclusive of the truth of the facts therein stated. Brocket Mercantile Co. v. Lemke Imperial Elevator Co., 39 N.D. 37, 166 N.W. 800, 1918 N.D. LEXIS 8 (N.D. 1918).

Joining in Issue.

The plaintiff need not take issue upon a garnishee’s answer which admits that the garnishee has sufficient money to satisfy the claim. Mahon v. Fansett, 17 N.D. 104, 115 N.W. 79, 1907 N.D. LEXIS 6 (N.D. 1907).

Jury Trial.

An issue triable to a jury in a civil action is triable to a jury in a garnishment action, and is not triable anew in the supreme court. Ruble v. Saretzke, 63 N.D. 631, 249 N.W. 716, 1933 N.D. LEXIS 215 (N.D. 1933).

Collateral References.

Garnishment 140, 148.

6 Am. Jur. 2d, Attachment and Garnishment, §§ 395, 396.

32-09.1-10. Disclosure fees.

In all garnishment proceedings, the plaintiff, when the garnishee summons is served upon the garnishee, shall tender to the garnishee the sum of twenty-five dollars as the fee for making an affidavit of disclosure.

Source:

S.L. 1981, ch. 350, § 1; 2005, ch. 297, § 2.

32-09.1-11. Effect of disclosure.

Subject to the provisions of sections 32-09.1-12 and 32-09.1-13, the disclosure is conclusive as to all property of the defendant. If the garnishee denies having any indebtedness to the defendant or having any property of the defendant in possession, the filing in court of a copy of the disclosure operates as a full discharge of the garnishee at the end of twenty days from the date of service of the disclosure, in the absence of further proceedings as provided for in sections 32-09.1-12 and 32-09.1-13. The filing of objections to the disclosure or the filing of any motion or other proceedings operates as a stay of the discharge. The court may, upon proper showing, relieve the plaintiff from the operation of the discharge after the expiration of twenty days. The garnishee may be discharged where the value of the property of the defendant held or indebtedness owing to the defendant is less than ten dollars, and the garnishee may apply to the court to be discharged as to any property or indebtedness in excess of the amount which may be required to satisfy the plaintiff’s judgment.

Source:

S.L. 1981, ch. 350, § 1.

DECISIONS UNDER PRIOR LAW

Denial Conclusive Unless Issue Joined.

When the garnishee serves an affidavit that he has no property in his hands belonging to the defendant, that fact becomes conclusive unless issue is joined thereon by the plaintiff. Mahon v. Fansett, 17 N.D. 104, 115 N.W. 79, 1907 N.D. LEXIS 6 (N.D. 1907).

If a garnishee files an affidavit denying liability as provided in this section, the proceedings against the garnishee are discontinued, unless within thirty days after the filing of such affidavit the plaintiff notifies garnishee that he elects to take issue on his answer to the garnishee summons in which case the issue stands for trial as a civil action. Imperial Elevator Co. v. Warren, 56 N.D. 329, 217 N.W. 523, 1928 N.D. LEXIS 220 (N.D. 1928).

Collateral References.

Garnishment 139, 142, 148.

38 C.J.S. Garnishment, §§ 209, 214, 223.

32-09.1-12. Oral disclosure — Supplemental complaint.

Either before or after written disclosure, any party to the garnishment proceedings may obtain an ex parte order requiring oral disclosure. The order may be obtained upon affidavit showing, upon information and belief, facts justifying the order, and the court shall require the garnishee to appear for oral examination before the court. If the garnishee holds the garnished property by a title that is void as to the defendant’s creditors, the garnishee may be charged for the property although the defendant could not have maintained an action against the garnishee for it; but in this, and in all other cases in which the garnishee denies liability, the plaintiff may move the court at any time before the garnishee is discharged, on notice to both the defendant and the garnishee, for leave to file a supplemental complaint making the garnishee a party to the action, and setting forth the facts upon which the plaintiff claims to charge the garnishee. If probable cause is shown, the motion shall be granted. The supplemental complaint must be served upon both defendant and garnishee, either or both of whom may answer, and the plaintiff may reply. The issues must be brought to trial and tried as in other actions.

Source:

S.L. 1981, ch. 350, § 1.

Notes to Decisions

Probable Cause Not Shown.

Plaintiff failed to show by evidence probable grounds for believing that insurer might be held liable under policy issued by liability insurer which had refused to defend tortfeasor with whom plaintiff had settled, where the record did not contain any affidavits, admissions, answers to interrogatories, or depositions submitted by plaintiff in support of her motion to file supplemental complaint joining insurer as garnishee. Medd v. Fonder, 543 N.W.2d 483, 1996 N.D. LEXIS 43 (N.D. 1996).

No probable cause existed for the plaintiff funnel inventors’ motion to file a supplemental complaint to be granted under N.D.C.C. § 32-09.1-12 against a manufacturer’s commercial general liability insurer where inventors’ alleged damages stemmed from the insured manufacturer’s failure to properly assemble the entire funnel and thus, the insurer’s commercial general liability policy’s product and work exclusions precluded coverage for the alleged damage to the brass inserts and various other parts and equipment that the inventors provided to the manufacturer in the manufacturing process; for purposes of the policy exclusion, product and work included all of the various parts and assembly of the funnel. Peterson v. Dakota Molding, Inc., 2007 ND 144, 738 N.W.2d 501, 2007 N.D. LEXIS 147 (N.D. 2007).

32-09.1-13. Third party may intervene.

If it appears that any person not a party to the action has or claims an interest in any of the garnished property antedating the garnishment, the court may permit that person to appear and maintain that person’s rights. If the person does not appear, the court may direct that the person be notified to appear or be barred of the claim. The notice may be served in a manner as the court directs, and the person appearing or notified shall be joined as a party and is bound by judgment against the garnishee.

Source:

S.L. 1981, ch. 350, § 1.

32-09.1-14. Default.

If any garnishee who is duly summoned willfully fails to serve disclosure as required in this chapter, the court, upon proof by affidavit of the creditor, may render judgment against the garnishee for an amount not exceeding the lesser of the plaintiff’s judgment against the defendant or the retention amount as defined under section 32-09.1-07. The creditor shall serve the garnishee with a copy of the affidavit and a notice of intent to take default judgment. The court upon good cause shown may remove the default and permit the garnishee to disclose on terms as may be just.

Source:

S.L. 1981, ch. 350, § 1; 2001, ch. 306, § 2; 2005, ch. 297, § 3; 2007, ch. 290, § 3.

Notes to Decisions

Good Cause.

The “good cause” standard in this section does not conflict with N.D.R.Civ.P. 60(b), but simply describes the more liberal application of “excusable neglect” under Rule 60(b) for relief from a default judgment against a garnishee. Murdoff v. Murdoff, 517 N.W.2d 402, 1994 N.D. LEXIS 123 (N.D. 1994).

Vacation of Default Judgment.

The trial court did not abuse its discretion by finding both lack of gross neglect and good cause to vacate a wife’s default judgment, where the wife filed a garnishment summons and disclosure on a company which she believed owed her husband money to collect a divorce judgment. Although the company’s failure to return the disclosure form did not comply with N.D.C.C. § 32-09.1-09, the disclosure form itself described how it could dispute any indebtedness to the husband, and the company was no stranger to legal procedures and should have known a response was required, the trial court determined that it’s nondisclosure was the result of an honest mistake, not gross neglect or recklessness. Murdoff v. Murdoff, 517 N.W.2d 402, 1994 N.D. LEXIS 123 (N.D. 1994).

DECISIONS UNDER PRIOR LAW

Effect of Default.

Where the garnishee was in default under this section, the plaintiff was entitled to judgment against him for the amount of the judgment he was entitled to recover against the defendant. Enderlin Farmers Store Co. v. Withliff, 56 N.D. 380, 217 N.W. 537, 1928 N.D. LEXIS 223 (N.D. 1928); Storing v. Stutsman, 56 N.D. 531, 218 N.W. 223, 1928 N.D. LEXIS 168 (N.D. 1928).

Collateral References.

Garnishment 152-155, 178.

38 C.J.S. Garnishment, §§ 224, 254.

32-09.1-15. Judgment against garnishee.

Judgment against a garnishee must be rendered, if at all, for the amount due the defendant, or so much thereof as may be necessary to satisfy the plaintiff’s judgment against the defendant, with costs taxed and allowed in the proceeding against the garnishee but not to exceed the retention amount defined under section 32-09.1-07. The judgment must discharge the garnishee from all claims of all the parties named in the process to the property, earnings, or money paid, delivered, or accounted for by the garnishee by force of the judgment. When a person is charged as garnishee by reason of any property in possession other than an indebtedness payable in money, that person shall deliver the property, or so much of the property as may be necessary, to the officer holding execution, and the property must be sold and the proceeds accounted for in the same manner as if the property had been taken on execution against the defendant. The garnishee may not be compelled to deliver any specific articles at any time or place other than as stipulated in the contract with the defendant.

Source:

S.L. 1981, ch. 350, § 1; 2007, ch. 290, § 4.

DECISIONS UNDER PRIOR LAW

Death of Defendant.

Death of defendant before rendition of a judgment against him dissolves garnishment proceedings in action against the defendant. First Nat'l Bank v. Rohlik, 66 N.D. 72, 262 N.W. 458, 1935 N.D. LEXIS 173 (N.D. 1935).

Entry.

A default judgment cannot be entered against garnishee defendants until a valid judgment against the principal defendant is entered. ATWOOD v. TUCKER, 26 N.D. 622, 145 N.W. 587, 1914 N.D. LEXIS 157 (N.D. 1914).

Exempt Property.

A garnishee could plead as a defense to garnishment that the property in his possession is exempt to the defendant. Congress Candy Co. v. Farmer, 73 N.D. 174, 12 N.W.2d 796, 1944 N.D. LEXIS 52 (N.D. 1944).

Measurement of Liability.

The garnishee’s liability is measured by his responsibility and relation to the defendant. Hatcher v. Plumley, 38 N.D. 147, 164 N.W. 698, 1917 N.D. LEXIS 24 (N.D. 1917).

Superior Position.

A plaintiff cannot place himself, by garnishment, in a position superior to defendant’s position. Hatcher v. Plumley, 38 N.D. 147, 164 N.W. 698, 1917 N.D. LEXIS 24 (N.D. 1917); Retterath v. Smith, 60 N.D. 83, 232 N.W. 606, 1930 N.D. LEXIS 211 (N.D. 1930).

Validity.

A judgment entered against both defendant and garnishee by default was void where it was entered without jurisdiction. ATWOOD v. TUCKER, 26 N.D. 622, 145 N.W. 587, 1914 N.D. LEXIS 157 (N.D. 1914).

Collateral References.

Garnishment 105-116, 174-185, 234-238.

6 Am. Jur. 2d, Attachment and Garnishment, §§ 417 et seq.

38 C.J.S. Garnishment, §§ 172-190, 242-255, 293-295.

Form of judgment against garnishee respecting obligation payable in installments, 7 A.L.R.2d 680.

Garnishment in action on note or bond, not resulting in sale of mortgaged property, as precluding foreclosure of real estate mortgage, 37 A.L.R.2d 959.

Right of garnishee, other than bank holding deposit, to set off claims not due or certain when garnishment is served, 57 A.L.R.2d 700.

Branch bank or main office of bank having branches, attachment and garnishment of funds in, 12 A.L.R.3d 1088.

Banks: post-Snidach status of banker’s right to set off bank’s claim against depositor’s funds, 65 A.L.R.3d 1284.

32-09.1-16. Minimum judgment.

No judgment may be rendered against a garnishee if the judgment against the defendant is less than twenty-five dollars, exclusive of costs, rather, the garnishee shall be discharged.

Source:

S.L. 1981, ch. 350, § 1.

32-09.1-17. Discharge not a bar.

If any person summoned as a garnishee is discharged, the judgment is no bar to an action brought by the defendant or other claimants against the garnishee for the same demand.

Source:

S.L. 1981, ch. 350, § 1.

32-09.1-18. Discharge from employment for garnishment or execution prohibited.

No employer may discharge any employee by reason of the fact that earnings have been subjected to garnishment or execution. If an employer discharges an employee in violation of this section, the employee may within ninety days of discharge bring a civil action for recovery of twice the wages lost as a result of the violation and for an order requiring reinstatement.

Source:

S.L. 1981, ch. 350, § 1.

32-09.1-19. Garnishments — Minimal amount — Disclosure.

If the amount required to be retained by the garnishee is less than ten dollars, the garnishee may not retain the sum but shall make the disclosures otherwise required, except as provided in section 32-09.1-21.

Source:

S.L. 1981, ch. 350, § 1; 2001, ch. 306, § 3.

32-09.1-20. Termination of garnishment.

A garnishee summons lapses and the garnishee is discharged of any liability upon the expiration of three hundred sixty days after the service of the summons, or a longer period of time either agreed to in writing by the plaintiff and the defendant or ordered by the court. Immediately upon the lapse of the garnishee summons, all earnings, money, property, and effects that the garnishee has been retaining pursuant to the garnishment must be returned to the defendant if the defendant is otherwise legally entitled to receipt of them.

Source:

S.L. 1981, ch. 350, § 1; 1999, ch. 302, § 2; 2003, ch. 278, § 3.

DECISIONS UNDER PRIOR LAW

Analysis

Default Judgment.

A default judgment against a defendant and garnishee, after becoming final, with payment by the garnishee, is conclusive against the defendant, and cannot be attacked in another action. Erker v. Deichert, 57 N.D. 474, 222 N.W. 615, 1928 N.D. LEXIS 151 (N.D. 1928).

Dismissal of Garnishment.

A garnishment is dismissed, where garnishee has made a return upon which no issue is taken and upon trial the facts established, which are consistent with the return, show that judgment should not be rendered against garnishee. Schmidt v. First Nat'l Bank, 60 N.D. 19, 232 N.W. 314, 1930 N.D. LEXIS 200 (N.D. 1930).

Moneys Deposited As Bail.

Moneys deposited with the district court clerk in lieu of a bail bond are not garnishable while so held. State v. Blum, 58 N.D. 549, 226 N.W. 694, 1929 N.D. LEXIS 249 (N.D. 1929).

32-09.1-21. Continuing lien on wages.

A plaintiff may obtain a two hundred seventy-day continuing lien on wages by garnishment. A plaintiff obtaining a continuing lien on wages by garnishment shall mark “continuing lien” on the caption of the garnishee summons. Each garnishment disclosure form must provide the garnishee will continue to hold the nonexempt portion of the defendant’s earnings as the earnings accrue through the last payroll period ending on or before two hundred seventy days from the effective date of the garnishee summons, or until the sum held equals the amount stated in the garnishee summons, or until the employment relationship terminates, whichever first occurs.

If the garnishee’s answers to a garnishment disclosure form provide the amount withheld is less than ten dollars, the garnishee is not required to return subsequent forms to the plaintiff until the amount withheld is ten dollars or more. For any pay period in which the garnishee is not required under this section to return the form to the plaintiff, the garnishee’s answers from the previous form remain in effect. At the expected termination of the lien, the plaintiff shall mail the garnishee an additional copy of the garnishment disclosure form upon which the garnishee within ten days shall make further disclosure.

Source:

S.L. 1981, ch. 350, § 1; 1995, ch. 328, § 1; 1999, ch. 302, § 3; 2001, ch. 306, § 4; 2003, ch. 278, § 4.

Notes to Decisions

In General.

The language of this section, read in conjunction with entire statutory scheme, establishes that if garnishment lien is created by service of garnishment summons, it lapses in one hundred and eighty days, unless plaintiff and defendant agree to longer time in writing or the court orders otherwise. Detroit Diesel Allison v. Heinze, 434 N.W.2d 352, 1989 N.D. LEXIS 4 (N.D. 1989).

Interpleader After Lapse of Garnishment.

Trial court erred in determining that interpleader action stopped further garnishment proceedings where interpleader action was not initiated until after garnishment action lapsed. Detroit Diesel Allison v. Heinze, 434 N.W.2d 352, 1989 N.D. LEXIS 4 (N.D. 1989).

Lapsed Garnishment.

Company failed to secure garnishment judgment under this section where garnishment lapsed one hundred and eighty days after service of garnishment summons, and nothing in record indicated that there was an agreement in writing between garnishment plaintiff and garnishment defendant or an order of court extending garnishment summons. Detroit Diesel Allison v. Heinze, 434 N.W.2d 352, 1989 N.D. LEXIS 4 (N.D. 1989).

No Indefinite Garnishment.

Argument that language, “garnishee summons lapses and garnishee is discharged of any liability”, released garnishee’s obligation to hold money but did not terminate garnishment lien failed; such interpretation created an indefinite garnishment lien which was inconsistent with time constraints and ordinary procedure for obtaining and executing on garnishment judgment under Ch. 32-09.1. Detroit Diesel Allison v. Heinze, 434 N.W.2d 352, 1989 N.D. LEXIS 4 (N.D. 1989).

Law Reviews.

Fresh Start Lien Avoidance Under the Bankruptcy Code Utilizing North Dakota Exemptions, 69 N.D. L. Rev. 203 (1993).

32-09.1-22. Claim of exemptions — How made.

When the defendant claims that the indebtedness or property, or a part thereof, is exempt from garnishment or from execution, the defendant, at or before twenty days after the service of the garnishee summons, shall file a schedule of all personal property subscribed and sworn to as provided in section 28-22-07.

Source:

S.L. 1981, ch. 350, § 1.

DECISIONS UNDER PRIOR LAW

Analysis

Claim for Exemption.

A claim for exemption in garnishment proceedings in justice court, to serve as a defense, must have been preceded by the filing of a schedule of the debtor’s personal property. Burcell v. Goldstein, 23 N.D. 257, 136 N.W. 243, 1912 N.D. LEXIS 91 (N.D. 1912).

The right to additional exemptions may be asserted by answer in a garnishment proceeding, or by demand and schedule after a levy on execution or under attachment. Jangula v. Bobb, 55 N.D. 279, 213 N.W. 27, 1927 N.D. LEXIS 34 (N.D. 1927).

A debtor who transfers all property not garnished to creditors to pay debts does not waive the right to claim property garnished as exempt. First Nat'l Bank v. Oliver, 55 N.D. 741, 214 N.W. 911, 1927 N.D. LEXIS 132 (N.D. 1927).

This section puts the defendant in the position of the garnishee and enables him to make any defense that the garnishee could make, including the defense that the property garnished is exempt from execution. Imperial Elevator Co. v. Warren, 56 N.D. 329, 217 N.W. 523, 1928 N.D. LEXIS 220 (N.D. 1928).

Default Judgment.

A default judgment against a defendant and garnishee, after becoming final, with payment by the garnishee, is conclusive against the defendant, and cannot be attacked in another action. Erker v. Deichert, 57 N.D. 474, 222 N.W. 615, 1928 N.D. LEXIS 151 (N.D. 1928).

32-09.1-23. Claim of exemptions — When heard.

In all cases when the defendant claims the debt or property garnished to be exempt, the claim of exemptions may be heard and determined by the court at any time after the claim is made, on three days’ notice to the plaintiff.

Source:

S.L. 1981, ch. 350, § 1.

DECISIONS UNDER PRIOR LAW

Dismissal.

Under the laws of this state, a garnishee action cannot be dismissed, in advance of trial, upon the motion of the defendant, supported by affidavit, on the ground that the averments of the affidavit for garnishment are untrue. Park, Grant & Morris v. Nordale, 41 N.D. 351, 170 N.W. 555, 1918 N.D. LEXIS 150 (N.D. 1918).

CHAPTER 32-10 Receivers

32-10-01. Receiver — When appointed.

A receiver may be appointed by the court in which an action is pending, or by a judge thereof:

  1. In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to the creditor’s claim, or between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff, or of any party whose right to or interest in the property or fund or the proceeds thereof is probable, and when it is shown that the property or fund is in danger of being lost, removed, or materially injured.
  2. In an action by a mortgagee for the foreclosure of the mortgage and sale of the mortgaged property, when it appears that the mortgaged property is in danger of being lost, removed, or materially injured, or that the conditions of the mortgage have not been performed and that the property is probably insufficient to discharge the mortgage debt.
  3. After judgment, to carry the judgment into effect.
  4. After judgment, to dispose of the property according to the judgment or to preserve it during the pendency of an appeal, or in proceedings in aid of execution, when an execution has been returned unsatisfied, or when the judgment debtor refuses to apply the debtor’s property in satisfaction of the judgment.
  5. In the cases provided in this code, when a corporation or limited liability company has been dissolved, or is insolvent or in imminent danger of insolvency, or has forfeited its corporate rights, and in like cases within this state, of foreign corporations and of foreign limited liability companies.
  6. In all other cases in which receivers heretofore have been appointed by the usages of courts of equity.

Source:

C. Civ. P. 1877, § 219; R.C. 1895, § 5403; R.C. 1899, § 5403; R.C. 1905, § 6989; C.L. 1913, § 7588; R.C. 1943, § 32-1001; S.L. 1993, ch. 54, § 106.

Derivation:

Wait’s (N.Y.) Code, 244; Harston’s (Cal.) Practice, 564.

Cross-References.

Banks, see N.D.C.C. ch. 6-07.

Consumer fraud and unlawful credit practices, see N.D.C.C. §§ 51-15-07, 51-15-08.

Corporations, see N.D.C.C. §§ 10-19.1-116, 10-19.1-117.

Municipal enterprises, see N.D.C.C. §§ 40-35-16, 40-35-17, 40-36-17.

Nonprofit corporations, see N.D.C.C. §§ 10-33-108, 10-33-109.

Supplementary proceedings to execution, see N.D.C.C. §§ 28-25-12 to 28-25-14.

Notes to Decisions

Action Pending.

Trial court erred in appointing receiver of bankrupt firm where no action was pending since “an appointment of receiver may only be made ancillary to an action brought”. In re Weisser Fin. Co., 169 N.W.2d 420, 1969 N.D. LEXIS 91 (N.D. 1969).

Appeal.
—Preservation of Property.

After an appeal has been perfected from a district court judgment, the district court may appoint a receiver to preserve the property in litigation. Olson v. Union Cent. Life Ins. Co., 58 N.D. 899, 228 N.W. 223, 1929 N.D. LEXIS 294 (N.D. 1929).

Court Monitor.

Court monitor, appointed by a trial court to observe and report actions of defendant bank during litigation, was not a “receiver” within North Dakota law, because the monitor did not take possession of any fund or property which was subject of litigation. Therefore, statutes applicable to receivers were inapplicable. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

The following functions, assigned by court to a monitor, were not those of a receiver: acting as a conduit during litigation by obtaining monthly reports from defendant bank about salaries, bonuses, expenditures, or loan write-offs in favor of bank’s shareholders, officers, or directors; attending meetings of board of directors; receiving minutes of those meetings; and forwarding all information and reports received from bank to court and to all counsel. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

Crops Planted by Trespasser.

Where crops are planted by a trespasser who wrongfully assumes to hold possession and threatens to harvest and market the crops for his own benefit, the appointment of a receiver is proper. Gunsch v. Gunsch, 69 N.W.2d 739, 1954 N.D. LEXIS 121, 1955 N.D. LEXIS 101 (N.D. 1954).

Dissolution of Partnership.

An application for appointment of a receiver in an action to dissolve a partnership is addressed to the trial court’s discretion, and its ruling will be disturbed only for abuse thereof. Ingwalson v. Aney, 54 N.D. 627, 210 N.W. 498, 1926 N.D. LEXIS 71 (N.D. 1926).

Ex Parte Application.

Appointment of a receiver ex parte is not tolerated by the courts except in cases of the gravest emergency, and to prevent irreparable injury. Grandin v. La Bar, 2 N.D. 206, 50 N.W. 151, 1891 N.D. LEXIS 39 (N.D. 1891).

Where substantial rights are involved, receiver should not be appointed on an ex parte presentation. Grandin v. La Bar, 2 N.D. 206, 50 N.W. 151, 1891 N.D. LEXIS 39 (N.D. 1891); Glein v. Miller, 45 N.D. 1, 176 N.W. 113, 1920 N.D. LEXIS 103 (N.D. 1920).

General Definition.

A receiver is one who takes possession of and preserves, pendente lite, and for the benefit of the party ultimately entitled to it, fund or property in litigation. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

Insolvent Corporation.

A receiver for an alleged insolvent corporation was improperly appointed under this section at the request of a creditor, seeking a money judgment, who had no lien on any property of the corporation or interest in any fund in its possession and showed no interest in any corporate property. Baird v. Agricultural Credit Corp., 64 N.D. 456, 253 N.W. 164, 1934 N.D. LEXIS 221 (N.D. 1934).

Joint Ownership of Property.

A receiver may be appointed in an action between partners, or others jointly owning or interested in property, on the application of the plaintiff, or of any party whose interest in the property is in danger of being lost, removed, or materially injured, and in all other cases where receivers heretofore have been appointed by the usages of courts of equity. Dale v. Duffy, 44 N.D. 33, 176 N.W. 97, 1919 N.D. LEXIS 231 (N.D. 1919).

A receiver may be appointed by the court, in which an action is pending between parties jointly interested in property, on the application of any party whose right or interest in the property or fund or proceeds thereof is probable, and when it is shown that the property or fund is in danger of being lost, removed or materially injured. Gunsch v. Gunsch, 69 N.W.2d 739, 1954 N.D. LEXIS 121, 1955 N.D. LEXIS 101 (N.D. 1954).

Judgment Debtor’s Property.

To entitle a judgment creditor to an order appointing a receiver of his debtor’s property, it must appear that the creditor in good faith has exhausted his remedies at law and, unless special circumstances excuse such course, execution must have been issued and returned unsatisfied. Minkler v. United States Sheep Co., 4 N.D. 507, 62 N.W. 594, 1895 N.D. LEXIS 47 (N.D. 1895).

Mortgage Foreclosure.

A court of equity has no authority to deprive a mortgagor of real property of the rents, use, and benefit of property until expiration of the period of redemption, by appointing a receiver. Farm Mortgage Loan Co. v. Pettet, 51 N.D. 491, 200 N.W. 497, 1924 N.D. LEXIS 55 (N.D. 1924); SMITH v. GRILK, 64 N.D. 163, 250 N.W. 787, 1933 N.D. LEXIS 263 (N.D. 1933).

Refusal to Appoint.

The refusal to appoint a receiver is warranted where it would have done plaintiffs no possible good, and would have done defendants great injury. Langer v. Fargo Mercantile Co., 43 N.D. 237, 174 N.W. 90, 1919 N.D. LEXIS 19 (N.D. 1919).

Collateral References.

Receivers 4, 29-64.

65 Am. Jur. 2d, Receivers, §§ 6 et seq.

Tort action, appointment of receiver at instance of plaintiff in, 4 A.L.R.2d 1278.

Effect of nonsuit, dismissal, or discontinuance of action upon previous order appointing receiver, 11 A.L.R.2d 1407.

Inspection of corporate books and records by stockholder for purpose of determining advisability of receivership, 15 A.L.R.2d 11.

Partnership: appointment of receiver in proceedings arising out of dissolution of partnership or joint adventure, otherwise than by death of partner or at instance of creditor, 23 A.L.R.2d 583.

Joinder: appointment of receiver as dependent upon prior obtaining of judgment, in view of Federal Civil Procedure Rule 18(b) and like state rules or statutes pertaining to joinder in a single action of two claims although one was previously cognizable only after the other had been prosecuted to a conclusion, 61 A.L.R.2d 688.

Foreign corporation, jurisdiction of action involving appointment of receiver for, 72 A.L.R.2d 1211.

Mortgagee’s right to receiver, 82 A.L.R.2d 1075.

Waste: what constitutes waste justifying appointment of receiver of mortgaged property, 55 A.L.R.3d 1041.

32-10-02. Who may be receiver — Undertaking by applicant.

No party or person interested in an action can be appointed receiver therein without the written consent of the opposing party filed with the clerk. If a receiver is appointed upon an ex parte application, the court before making the order may require from the applicant an undertaking with sufficient sureties in an amount to be fixed by the court, to the effect that the applicant will pay to the defendant all damages the defendant may sustain by reason of the appointment of such receiver and the entry by the receiver upon the receiver’s duties, in case the applicant shall have procured such appointment wrongfully, maliciously, or without sufficient cause, and the court in its discretion at any time after said appointment may require an additional undertaking.

Source:

C. Civ. P. 1877, § 221; R.C. 1895, § 5404; R.C. 1899, § 5404; R.C. 1905, § 6990; C.L. 1913, § 7589; R.C. 1943, § 32-1002.

Derivation:

Wait’s (N.Y.) Code, 244; Harston’s (Cal.) Practice, 566.

Notes to Decisions

Interested Party.

Appointment of bank, which was administrator of major stockholder’s estate, as receiver for dissolution of bankrupt firm, was error; this section requires consent of opposing parties before party interested in action may be appointed receiver. In re Weisser Fin. Co., 169 N.W.2d 420, 1969 N.D. LEXIS 91 (N.D. 1969).

Stockholder.

In action by judgment creditors to subject assets of corporation to payment of judgments and for a receivership, a stockholder of such corporation was not a proper person to act in the capacity of receiver. McKenzie v. Bismarck Water Co., 6 N.D. 361, 71 N.W. 608, 1897 N.D. LEXIS 23 (N.D. 1897).

Collateral References.

Receivers 48.

65 Am. Jur. 2d, Receivers, §§ 74-87.

32-10-03. Qualification of receiver.

Before entering upon the duties of receiver, the receiver must be sworn to perform them faithfully, and, with one or more sureties approved by the court or judge, must execute an undertaking to such person and in such sum as the court may direct, to the effect that the receiver will faithfully discharge the duties of receiver in the action and will obey the orders of the court therein.

Source:

C. Civ. P. 1877, § 222; R.C. 1895, § 5405; R.C. 1899, § 5405; R.C. 1905, § 6991; C.L. 1913, § 7590; R.C. 1943, § 32-1003.

Derivation:

Wait’s (N.Y.) Code, 244; Harston’s (Cal.) Practice, 567.

Collateral References.

Receivers 50, 51.

65 Am. Jur. 2d, Receivers, §§ 74-87.

32-10-04. Powers.

The receiver, under the control of the court, has power to bring and defend actions in the receiver’s own name as receiver, to take and keep possession of the property, to receive rents, to collect debts, to compromise the same, to make transfers, and generally to do such acts respecting the property as the court may authorize.

Source:

C. Civ. P. 1877, § 223; R.C. 1895, § 5406; R.C. 1899, § 5406; R.C. 1905, § 6992; C.L. 1913, § 7591; R.C. 1943, § 32-1004.

Derivation:

Wait’s (N.Y.) Code, 244; Harston’s (Cal.) Practice, 568.

Notes to Decisions

Borrowing Money.

The receiver of an insolvent state bank may be authorized to borrow money by the district court. Baird v. Forbes State Bank, 64 N.D. 239, 251 N.W. 846, 1933 N.D. LEXIS 270 (N.D. 1933).

Duties.

A receiver is one who takes possession of and preserves, pendente lite, and for the benefit of the party ultimately entitled to it, fund or property in litigation. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

Possession of Property.

Upon the appointment of a receiver for an insolvent corporation, the title and right of possession of its property pass by operation of law to the receiver, as an officer of the court, for the use and benefit of the creditors. Brynjolfson v. Osthus, 12 N.D. 42, 96 N.W. 261, 1903 N.D. LEXIS 22 (N.D. 1903).

Collateral References.

Receivers 65 et seq.

66 Am. Jur. 2d, Receivers, §§ 128 et seq.

Gambling, succession of receiver to statutory right of action for recovery of money lost at, 18 A.L.R.2d 999, 1002.

Wage claims of employees of operating receiver, allowance of, 27 A.L.R.2d 720.

“Shop right rule” or license giving employer limited rights in employee’s inventions and discoveries, receiver as succeeding to rights under, 61 A.L.R.2d 356, 408.

Usury: corporate receiver as affected by statute denying defense of usury to corporation, 63 A.L.R.2d 924, 946.

Negligence in failing to care for or maintain property in receivership, receiver’s personal liability for, 20 A.L.R.3d 967.

Law Reviews.

Fresh Start Lien Avoidance Under the Bankruptcy Code Utilizing North Dakota Exemptions, 69 N.D. L. Rev. 203 (1993).

32-10-05. Investment of funds on consent.

Funds in the hands of a receiver may be invested upon interest by order of the court, but no such order can be made except upon the consent of all the parties to the action.

Source:

C. Civ. P. 1877, § 224; R.C. 1895, § 5407; R.C. 1899, § 5407; R.C. 1905, § 6993; C.L. 1913, § 7592; R.C. 1943, § 32-1005.

Derivation:

Wait’s (N.Y.) Code, 244; Harston’s (Cal.) Practice, 569.

CHAPTER 32-11 Deposit

32-11-01. What subject to order of deposit.

When it is admitted by the pleadings or the examination of a party that the party has in the party’s possession or under the party’s control any money or other thing capable of delivery, which, being the subject of the litigation, is held by that party as trustee for another party or which belongs or is due to another party, the court may order the same to be deposited in court, or delivered to such party with or without security, subject to the further direction of the court.

Source:

C. Civ. P. 1877, § 225; R.C. 1895, § 5408; R.C. 1899, § 5408; R.C. 1905, § 6994; C.L. 1913, § 7593; R.C. 1943, § 32-1101.

Derivation:

Wait’s (N.Y.) Code, 244; Harston’s (Cal.) Practice, 572.

Collateral References.

Deposits in Court 1-12.

23 Am. Jur. 2d, Deposits in Court, §§ 1 et seq.

Payment into court as affecting personal liability of executor or administrator for interest on legacies or distributive shares where payment is delayed, 18 A.L.R.2d 1384.

Interest, right of vendor to, where purchase money has been paid into court, 25 A.L.R.2d 951, 975.

Rights as between vendor and vendee under land contract in respect of interest as affected by payment into court, 25 A.L.R.2d 951, 975.

Condemnor’s right, as against condemnee, to interest on excessive money deposited in court or paid to condemnee, 99 A.L.R.2d 886.

Garnishment, funds deposited in court as subject to, 1 A.L.R.3d 936.

Appealability of order directing payment of money into court, 15 A.L.R.3d 568.

Condemnor’s right to appeal, payment or deposit of award in court as affecting, 40 A.L.R.3d 203.

32-11-02. Voluntary deposit in court of property adversely claimed.

Whenever two or more persons make claim for the whole or any part of the same money, personal property, or effects in the possession or control of any other person as bailee or otherwise, and the right of any such claimant is adverse to the right of any other claimant, or is disputed or doubtful, and the bailee, custodian, or person in control of any part of such property, money, or effects is unable to determine to whom the same rightfully belongs, or who is rightfully entitled to the possession thereof, or whenever such bailee, custodian, or person in control has notice or knowledge of any right or claim of right of any person in or to any part of such property, money, or effects adverse to the right of any other claimant therefor, or whenever any debt, money, property, or effects owing by or in the possession or under the control of any person may be attached by garnishment or other process, and there is any dispute as to who is entitled to the same or any part thereof, in any such case the person in the possession or control of any such property, money, or effects:

  1. If an action in any form has been commenced for or on account of, or growing out of the same, or in which the same has been attached as aforesaid, may pay such money or deliver such property or effects to the clerk of the court in which any such action having reference to said money, property, or effects, or the value thereof, may be pending, or out of which any garnishment or other process may issue with reference thereto.
  2. If no such suit is commenced, may apply to the district court of the district where such property, money, or effects may be situated, and upon showing to the satisfaction of the court the existence of facts bringing such person within the operation of this section, such court shall make an order designating a depositary with whom such property, money, or effects may be deposited by the applicant for such order.

In either case such person in the possession or control of such property, money, or effects at once shall notify personally or by registered or certified mail all persons of whose claims such person may have notice or knowledge, having or claiming any interest, property, lien, or right in, to, or upon such property, money, or effects, of such deposit, and upon giving such notice the person so depositing the same thereupon shall be relieved from further liability to any person on account of such property, money, or effects, but such depositor may be required upon the application of any party interested therein to appear and make disclosure before the court in which any such action may be pending or by which any order designating a depositor may be made concerning such property, money, debts, or effects held, controlled, or owed by the depositor. If the address of any persons having or making any claim as aforesaid cannot be ascertained, an affidavit to that effect shall be filed with the depositary, and the giving of such notice shall not be required in such case.

Source:

S.L. 1895, ch. 39, § 1; R.C. 1895, § 5409; R.C. 1899, § 5409; R.C. 1905, § 6995; C.L. 1913, § 7594; R.C. 1943, § 32-1102.

Cross-References.

Interpleader by substitution, see N.D.R.Civ.P. 22(b).

Notes to Decisions

Adverse Claimants.

Interpleader is appropriate only if there are two or more adverse claimants asserting interests in the fund or property held by the stakeholder. Kiker v. Walters, 482 N.W.2d 626, 1992 N.D. LEXIS 67 (N.D. 1992).

Liability for Conversion.

This section does not authorize a deposit of the money value of the property, after an action is brought, in discharge of the liability for conversion as of a prior date. McLaughlin v. Dodge Elevator Co., 43 N.D. 231, 174 N.W. 871, 1919 N.D. LEXIS 34 (N.D. 1919).

The refusal of a defendant elevator company to comply with the plaintiff’s demand to deliver stored grain precludes the defendant from claiming the right to make a deposit in court so as to be relieved from liability for conversion. Sand v. St. Anthony & D. Elevator Co., 49 N.D. 502, 191 N.W. 955, 1922 N.D. LEXIS 82 (N.D. 1922).

Sale of Crops.

This section applies to a controversy over a fund derived from a sale of crops raised on land leased under a cropper’s contract, and furnishes the method of procedure which relieves an innocent party from litigating the ownership of the fund as between different claimants. McKenzie v. Hopkins, 29 N.D. 180, 150 N.W. 881, 1915 N.D. LEXIS 3 (N.D. 1915).

32-11-03. Disobedience — Contempt.

Whenever in the exercise of its authority a court shall have ordered the deposit, delivery, or conveyance of money or other property and the order is disobeyed, the court, besides punishing the disobedience as for contempt, may make an order requiring the sheriff to take the money or property and deposit, deliver, or convey it in conformity with the direction of the court.

Source:

C. Civ. P. 1877, § 226; R.C. 1895, § 5410; R.C. 1899, § 5410; R.C. 1905, § 6996; C.L. 1913, § 7595; R.C. 1943, § 32-1103.

Derivation:

Wait’s (N.Y.) Code, 244; Harston’s (Cal.) Practice, 574.

32-11-04. Defendant’s admissions.

When the answer of the defendant expressly or by not denying admits part of the plaintiff’s claim to be just, the court, on motion, may order such defendant to satisfy that part of the claim, and may enforce the order as it enforces a judgment or a provisional remedy.

Source:

C. Civ. P. 1877, § 227; R.C. 1895, § 5411; R.C. 1899, § 5411; R.C. 1905, § 6997; C.L. 1913, § 7596; R.C. 1943, § 32-1104.

Derivation:

Wait’s (N.Y.) Code, 244.

CHAPTER 32-12 Actions by and Against State

32-12-01. Action to annul patent — Duty of attorney general.

The state may bring an action to vacate or annul letters patent for lands granted by this state in any of the following cases:

  1. When they were obtained by means of a fraudulent suggestion or concealment of a material fact made by or with the knowledge or consent of the person to whom they were issued.
  2. When they were issued in ignorance of a material fact or through mistake.
  3. When the patentee, or those claiming under the patentee, have done or omitted an act in violation of the terms and conditions upon which the letters patent were granted, or by any other means have forfeited the interest acquired under the same.

Whenever the attorney general has good reason to believe that any act or omission specified in this section can be proved and that the person to be made defendant has no sufficient legal defense, the attorney general must commence such an action. Upon the rendition of a judgment vacating or annulling letters patent, the attorney general shall cause a copy of the judgment roll to be filed in the office of the secretary of state.

Source:

R.C. 1895, §§ 5752, 5783; R.C. 1899, §§ 5752, 5783; R.C. 1905, §§ 7360, 7391; C.L. 1913, §§ 7980, 8011; R.C. 1943, § 32-1201.

Notes to Decisions

School Lands.

The decision reached by the board of university and school lands in passing upon the validity of a contract for the sale of school lands, that such lands were not “coal lands” and therefore legally subject to sale was, in the absence of fraud or other evidence impugning the good faith of the board, final, and the title thereafter conveyed by a patent issued to the purchaser of such lands could not be defeated by subsequent discovery of a coal deposit therein. State v. Oster, 61 N.W.2d 276, 1953 N.D. LEXIS 93 (N.D. 1953).

Collateral References.

Public Lands 1641/2; States 190, 192, 202.

73B C.J.S. Public Lands, §§ 282-285.; 81A C.J.S. States, §§ 529-532, 577, 577, 558, 564.

32-12-02. Action against state — When authorized — Where brought — Undertaking for costs.

An action respecting the title to property, or arising upon contract, may be brought in the district court against the state the same as against a private person. Such actions shall be brought in the county in which the property is situated, or the county in which the plaintiff resides. The plaintiff at the time of commencing such action shall file an undertaking with sufficient surety to be approved by the clerk of court to the effect that the plaintiff will pay any judgment for costs that may be rendered against the plaintiff.

Source:

R.C. 1895, § 5929; R.C. 1899, § 5929; R.C. 1905, § 7547; C.L. 1913, § 8175; R.C. 1943, § 32-1202; S.L. 1979, ch. 107, § 4.

Notes to Decisions

Constitutionality.

Suit challenging the constitutionality of N.D.C.C. § 32-12-02, which required a “cost bond” before suing the State in a contractual dispute, was dismissed because an individual claiming that the State Tax Commissioner denied him a refund for motor vehicle excise taxes lacked standing since he had not suffered an injury in fact where: (1) the Tax Commissioner did not deny the individual’s refund request, but merely requested that he complete and return the proper form; (2) the individual had not commenced an action under N.D.C.C. § 32-12-02, and thus he was never required to post a bond; and (3) even if he had commenced a state court action, it was uncertain whether there would have been a need for the filing of a surety bond. Dubois v. N.D. AG, 2004 U.S. Dist. LEXIS 23621 (D.N.D. Nov. 16, 2004).

Administrative Inspectors.

While under former N.D.C.C. §§ 65-12-03, 65-12-06 and 65-12-11 (see now N.D.C.C. chapter 26.1-22.1), boiler inspectors are required to inspect boilers and issue certificates of inspection and boiler owners are required to pay inspection fees, these rights and obligations do not create a contractual relationship between the inspectors and boiler owners; thus while failure to make a careful inspection may constitute a breach of duty under tort principals, it does not constitute a breach of any contractual promise or obligation. Schloesser v. Larson, 458 N.W.2d 257, 1990 N.D. LEXIS 139 (N.D. 1990), overruled, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632, 1994 N.D. LEXIS 202 (N.D. 1994).

There being no contractual obligation, express or implied, an action against boilers inspectors by boiler owner is not one arising under contract for which an action can be brought against the state under this section in third party complaint in suit by tenants against the owner. Schloesser v. Larson, 458 N.W.2d 257, 1990 N.D. LEXIS 139 (N.D. 1990), overruled, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632, 1994 N.D. LEXIS 202 (N.D. 1994).

Arising upon Contract.

The state was the real party in interest, the action was not an action arising upon contract for which sovereign immunity has been waived under this section, and state could constitutionally raise sovereign immunity as a bar to plaintiff’s action where plaintiff brought action against state official in his official capacity only alleging direct causes of action under the federal and state constitutions and 42 USCS § 1983, claiming that failure to renew his position as branch manager of a state motor vehicle branch office was because of his political party affiliation and in violation of his constitutional and civil rights. Kristensen v. Strinden, 343 N.W.2d 67, 1983 N.D. LEXIS 438 (N.D. 1983).

Breach of Warranty of Title.

An action by purchaser at tax sale against county and state for negligence and for breach of warranty of title to the land, which was subject to a superior federal tax lien, was properly dismissed, on granting defendants’ motion for summary judgment since tax deed does not warrant the title it purports to convey as against encumbrances superior to the title which the state conveys. Heasley v. State, 115 N.W.2d 334, 1962 N.D. LEXIS 76 (N.D. 1962).

Consent to Suit.

Express authority to prosecute appeals in certain instances where claims have been denied by the workmen’s compensation bureau is not a consent to suit. Watland v. North Dakota Workmen’s Comp. Bureau, 58 N.D. 303, 225 N.W. 812 (1929), overruled on other grounds, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632 (N.D. 1994), explained, Henderson v. Scott, 72 N.D. 616, 10 N.W.2d 490, 1943 N.D. LEXIS 100 (N.D. 1943).

The consent of the state to subject itself to suit does not embrace suits to recover damages for neglect of official duty. Watland v. North Dakota Workmen’s Comp. Bureau, 58 N.D. 303, 225 N.W. 812 (1929), overruled on other grounds, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632 (N.D. 1994), explained, Henderson v. Scott, 72 N.D. 616, 10 N.W.2d 490, 1943 N.D. LEXIS 100 (N.D. 1943).

Contract Action.

By this section, the state has consented that it or its agencies, including a county, may be sued in cases “arising upon contract”, which includes an implied as well as an express contract. Little v. Burleigh County, 82 N.W.2d 603, 1957 N.D. LEXIS 118 (N.D. 1957).

Suit not within express provisions of statute may not be brought against state but consent to be sued in cases arising upon contract includes implied as well as express contracts. Stark County v. State, 160 N.W.2d 101, 1968 N.D. LEXIS 100 (N.D. 1968).

The legislature has authorized suits against the state in cases “arising upon contract.” Livingood v. Meece, 477 N.W.2d 183, 1991 N.D. LEXIS 196 (N.D. 1991); Effertz v. North Dakota Workers' Compensation Bureau, 481 N.W.2d 223, 1992 N.D. LEXIS 27 (N.D. 1992).

Damaged Property.

An action for damages to property caused by construction of a public improvement is an action “arising upon contract” even though no property is taken by the state. Northern Pac. R.R. v. Morton County, 131 N.W.2d 557 (N.D. 1964).

Guaranty Fund Commission.

A proceeding in equity by depositors in closed banks against depositors guaranty fund commission was not authorized by this section as it did not arise upon contract, express or implied. Wirtz v. Nestos, 51 N.D. 603, 200 N.W. 524, 1924 N.D. LEXIS 56 (N.D. 1924).

Highway Construction Contract.

This section was irrelevant to a dispute involving highway construction contract. Nelson Paving Co. v. Hjelle, 207 N.W.2d 225, 1973 N.D. LEXIS 176 (N.D. 1973).

Injunction.

An injunction may be granted against the enforcement of a tax by state officers. Wallace v. Hines, 253 U.S. 66, 40 S. Ct. 435, 64 L. Ed. 782, 1920 U.S. LEXIS 1476 (U.S. 1920).

North Dakota Mill and Elevator Association.

The state of North Dakota, doing business as the North Dakota Mill and Elevator Association, was subject to suit, in any transaction pertaining to the operation of such association for the breach of an obligation arising by operation of law as well as an obligation arising from contract. Bakken v. State, 56 N.D. 861, 219 N.W. 834, 1928 N.D. LEXIS 209 (N.D. 1928).

Service of Process.

A default judgment in an action against the state to quiet title, without service of process on the governor or attorney general, is of no force or effect. Company A, First Regiment N. G. T. S. v. State, 58 N.D. 66, 224 N.W. 661, 1929 N.D. LEXIS 183 (N.D. 1929).

Taking Private Property for Public Use.

Where the state, or an agency thereof, acting in a sovereign capacity, takes or damages private property for public use, the party aggrieved may bring an action in the courts to recover just compensation therefor. Jacobson v. State, 68 N.D. 259, 278 N.W. 652, 1938 N.D. LEXIS 104 (N.D. 1938).

Tax Refunds.

An action against the state for money had and received to recover excessive income taxes is an action “arising upon contract” within the statute authorizing an action against it. Ford Motor Co. v. State, 59 N.D. 792, 231 N.W. 883, 1930 N.D. LEXIS 197 (N.D. 1930).

Title to Property.

The statute authorizes an action to be brought against the state where the title to property is involved. Delaney v. State, 42 N.D. 630, 174 N.W. 290, 1919 N.D. LEXIS 187 (N.D. 1919).

A complaint is sufficient as against demurrer by the state when it alleges that the state claims some interest in the land, inferior to the interest of the plaintiff, and demands that the state set forth a statement of its claims. Dunham Lumber Co. v. Gresz, 70 N.D. 455, 295 N.W. 500, 1940 N.D. LEXIS 193 (N.D. 1940), overruled in part, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632, 1994 N.D. LEXIS 202 (N.D. 1994); Brye v. Greenfield, 70 N.D. 597, 296 N.W. 746, 1941 N.D. LEXIS 205 (N.D. 1941).

An action to foreclose a mortgage on realty, in which the state claims an interest as owner of a portion thereof, is an action “respecting title to property” within this section. Johnson v. Brunner, 71 N.D. 446, 1 N.W.2d 871, 1942 N.D. LEXIS 78 (N.D. 1942).

Workers Compensation Award.

A workers compensation award is not a debt or judgment, or liability arising out of contract express or implied. It is an obligation imposed by law and arises out of the status or relationship existing between employer and employee. Effertz v. North Dakota Workers' Compensation Bureau, 481 N.W.2d 223, 1992 N.D. LEXIS 27 (N.D. 1992).

Collateral References.

States 111, 191, 193-197.

72 Am. Jur. 2d, States, Territories, and Dependencies, §§ 92 et seq.

81A C.J.S. States, §§ 311, 313-316, 320, 533-543, 549-556, 559-564.

Contract, tortious breach of contract as within consent by state to suit on, 1 A.L.R.2d 864.

Immunity from suit of governmental liquor control agency, 9 A.L.R.2d 1292.

Declaratory relief with respect to unemployment compensation as suit against state, 14 A.L.R.2d 826.

Maintainability of partition action where state owns an undivided interest in property, 59 A.L.R.2d 937.

Acquisition of title to land by adverse possession by state or other governmental unit or agency, 18 A.L.R.3d 678.

Right of one governmental subdivision to sue another such subdivision for damages, 11 A.L.R.5th 630.

Law Reviews.

Sovereign Immunity — Judicial Abrogation of North Dakota’s Sovereign Immunity Results in Its Possible Legislative Reassertion and Legislation to Provide Injured Parties with a Remedy for the Torts Committed by the State or Its Agents, 71 N.D. L. Rev. 761 (1995).

For Article: Section 1983 Actions in North Dakota: An Empirical Study of Agency Policies and Law Enforcement and Correctional Officers, see84 N.D. L. Rev. 419 (2008).

32-12-03. Claim presented and refused before action brought.

No action upon a claim arising upon contract for the recovery of money only can be maintained against the state until the claim has been presented to the department, institution, agency, board, or commission to which claim relates for allowance and allowance thereof refused. The neglect or refusal of the office to act on such claim for a period of ten days after its presentation for allowance must be deemed a refusal to allow the claim.

Source:

R.C. 1895, § 5930; R.C. 1899, § 5930; R.C. 1905, § 7548; C.L. 1913, § 8176; R.C. 1943, § 32-1203; S.L. 1959, ch. 372, § 40; 1991, ch. 359, § 1.

Notes to Decisions

Applicability.

Because an action for retaliatory discharge based upon public policy sounds in tort, not contract, the notice-of-claim statute governing contract claims against the State of North Dakota, N.D.C.C. § 32-12-03, is inapplicable. Ghorbanni v. N.D. Council on the Arts, 2002 ND 22, 639 N.W.2d 507, 2002 N.D. LEXIS 25 (N.D. 2002).

Dismissal Without Prejudice.

Supreme court did not have jurisdiction to consider the appeal of Native Americans where the district court dismissed all plaintiffs except one from the action, “without prejudice,” because he was the only plaintiff who had complied with N.D.C.C. § 32-12-03, and the dismissal of the other plaintiffs was the only aspect of the order challenged on appeal, because dismissal without prejudice neither terminated the litigation in state court nor necessarily barred the action and claim for tax refunds under the statute of limitations. Mann v. ND Tax Comm'r, 2005 ND 36, 692 N.W.2d 490, 2005 N.D. LEXIS 38 (N.D. 2005).

Failure to Present Claim.

Because plaintiff’s claim for breach of his employment contract was subject to this provision, his failure to present his claim to the Board of Higher Education deprived the trial court of subject matter jurisdiction. Dimond v. State, 1999 ND 228, 603 N.W.2d 66, 1999 N.D. LEXIS 242 (N.D. 1999).

Written Claim.

Although this section does not expressly state that a claim be in written form, it does require that a claim be “presented.” There are sound reasons for construing the requirement of presentment to mean a claim must be in writing. Livingood v. Meece, 477 N.W.2d 183, 1991 N.D. LEXIS 196 (N.D. 1991).

Professor’s filing of an administrative appeal of university’s decision to terminate him did not satisfy this section’s requirement of presenting a written claim for money to the designated state entity. Messiha v. State, 1998 ND 149, 583 N.W.2d 385, 1998 N.D. LEXIS 165 (N.D. 1998).

Collateral References.

States 169-185, 197.

72 Am. Jur. 2d, States, Territories, and Dependencies, §§ 92 et seq.

81A C.J.S. States, §§ 467-480, 482, 484-486,489-493, 503-512, 515-520 524, 525, 528, 561-563.

Complaint as satisfying requirement of notice of claim upon states, municipalities, and other political subdivisions, 45 A.L.R.5th 109.

Persons or entities upon whom notice of injury or claim against state or state agencies may or must be served, 45 A.L.R.5th 173.

32-12-04. How judgment collected.

No execution may issue against the state on any judgment, but whenever a final judgment against the state has been obtained in any action other than an action under chapter 32-12.2, the clerk shall make and furnish to the office of the budget a duly certified copy of the judgment. After approval, and if funds have been appropriated therefor, the office of the budget, in due course, shall prepare and issue a warrant for the amount of such judgment and deliver the same to the person entitled thereto.

Source:

R.C. 1895, § 5931; R.C. 1899, § 5931; R.C. 1905, § 7549; C.L. 1913, § 8177; R.C. 1943, § 32-1204; S.L. 1959, ch. 372, § 41; 1973, ch. 110, § 2; 1995, ch. 329, § 6.

Note.

This section remained effective after July 31, 1997, upon the disapproval of chapter 648, S.L. 1995 (Senate Concurrent Resolution No. 4014), by Measure No. 2, November 5, 1996.

Section 22 of chapter 329, S.L. 1995 provides:

“If Senate Concurrent Resolution No. 4014 is approved by the fifty-fourth legislative assembly and the measure is approved by the voters, sections 1 through 4, 6 through 11, and section 15 of this Act are effective through July 31, 1997, and after that date are ineffective.”

Notes to Decisions

Appropriation for Payment.

Former § 186 of the constitution providing that no money shall be paid out of the state treasury except upon appropriation but containing a proviso excepting from its requirements funds allocated to the state highway department for construction, reconstruction, and maintenance of public roads, does not require a legislative appropriation before payment of a judgment against the state highway commission for damages resulting from the construction of highways. King v. Baker, 71 N.D. 125, 299 N.W. 247, 1941 N.D. LEXIS 145 (N.D. 1941); Ford Motor Co. v. Baker, 71 N.D. 298, 300 N.W. 435, 1941 N.D. LEXIS 169 (N.D. 1941).

Garnishment.

This section does not refer or apply to a direct garnishment proceeding ancillary to a suit against the Bank of North Dakota. Sargent County v. State, 47 N.D. 561, 182 N.W. 270, 1921 N.D. LEXIS 107 (N.D. 1921).

Collateral References.

States 213.

81A C.J.S. States, § 586.

Recovery of interest on claim against a governmental unit in absence of provision in contract or express statutory provision, 24 A.L.R.2d 928.

Law Reviews.

Sovereign Immunity — Judicial Abrogation of North Dakota’s Sovereign Immunity Results in Its Possible Legislative Reassertion and Legislation to Provide Injured Parties with a Remedy for the Torts Committed by the State or Its Agents, 71 N.D. L. Rev. 761 (1995).

32-12-05. Claims resulting from year 2000 date change computer failures prohibited.

The state is not liable for a claim arising upon contract which is the result of the failure of any computer hardware or software, telecommunications network, or device containing a computer processor to interpret, produce, calculate, generate, or account for a date that is compatible with the year 2000 date change if the state has made a good-faith effort to make the computer hardware or software, telecommunications network, or device containing a computer processor compliant with the year 2000 date change. For the purposes of this section, the state is presumed to have made a good-faith effort to make the computer hardware or software, telecommunications network, or device containing a computer processor compliant with the year 2000 date change if the results of testing establish that the computer hardware or software, telecommunications network, or device containing a computer processor meets the compliance requirements of this section, or if the state has sought and received an assurance of compliance from the manufacturer or supplier, or if the state has sought an assurance of compliance from the manufacturer, supplier, government, or other reliable source when testing or receiving an assurance from the manufacturer or supplier of the computer hardware or software, telecommunications network, or device containing a computer processor is not practicable. For the purposes of this section, computer hardware or software, a telecommunications network, or device containing a computer processor is compliant with the year 2000 date change if:

  1. All stored dates or programs contain century recognition, including dates stored in databases and hardware or internal system dates in devices;
  2. The program logic accommodates same century and multicentury formulas and date values; and
  3. The year 2000 or any other leap year is correctly treated as a leap year within all program logic.

Source:

S.L. 1999, ch. 303, § 2.

CHAPTER 32-12.1 Governmental Liability

32-12.1-01. Legislative intent.

This chapter creates additional powers and optional and alternative methods for the single and specific purpose of enabling political subdivisions to pay and to compromise claims and judgments, to issue bonds to fund and satisfy the same, to levy taxes in amounts necessary for such purposes without respect to limitations otherwise existing, and to compromise judgments and make periodic payments on such compromised amount.

Source:

S.L. 1977, ch. 303, § 1.

Cross-References.

Payment and compromise of judgments against municipalities, see N.D.C.C. ch. 40-43.

Notes to Decisions

Governmental Tort Immunity Abolished.

The doctrine of governmental immunity from tort liability is abolished, and governmental bodies, other than state government, are subject to suit for damages by individuals injured by negligent or wrongful acts or omissions of their agents and employees, whether engaged in a proprietary or governmental function. Kitto v. Minot Park Dist., 224 N.W.2d 795, 1974 N.D. LEXIS 133 (N.D. 1974).

Limited Liability.

This chapter and its predecessor, were enacted to limit the liability imposed upon political subdivisions by the decision in Kitto v. Minot Park Dist., 224 N.W.2d 795 (N.D. 1974), overruled in part, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632 (N.D. 1994). O'Fallon v. Pollard, 427 N.W.2d 809, 1988 N.D. LEXIS 188 (N.D. 1988).

Ordinary Acts of Negligence.

Where injuries are sustained by a nonpaying recreational user, N.D.C.C. ch. 53-08 precludes liability against the political subdivision for ordinary acts of negligence by its employees which relate to the condition of the property; unless the political subdivision, through its employees, has committed a willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity on the property, the political subdivision is not liable. Fastow v. Burleigh County Water Resource Dist., 415 N.W.2d 505, 1987 N.D. LEXIS 427 (N.D. 1987).

Purpose.

The obvious purpose of this chapter is to limit exposure to potential liability. The reduced three-year period for commencing an action under the chapter furthers this purpose. In effect, the three-year statute of limitations is the legislatively imposed quid pro quo for the liability provided by this chapter. Olson v. University of N. Dakota, 488 N.W.2d 386, 1992 N.D. LEXIS 144 (N.D. 1992).

Upon remand of the case to the trial court, the trial court under the authority of N.D.C.C. § 1-02-39 could consider the factors listed in that statute to determine the appropriate limitations period to be applied to the lessees’ contract claims against the political subdivision. The trial court needed to do so because it applied the wrong limitations period to determine that the contract claims were barred against the political subdivision, especially given the legislature’s intent under N.D.C.C. § 32-12.1-01 that claims against political subdivisions be treated separately from claims against the state, that tort claims as recognized by the factors set forth in N.D.C.C. § 32-12.1-02, that state tort liability was separate from political subdivision liability as contemplated under N.D.C.C. § 32-12.2-01, and that the legislature had provided a “catch-all” limitations provision for actions against only the state and its employees under N.D.C.C. § 28-01-22.1. Finstad v. Ransom-Sargent Water Users, Inc., 2011 ND 215, 812 N.W.2d 323, 2011 N.D. LEXIS 216 (N.D. 2011).

Collateral References.

Liability of governmental entity to builder or developer for negligent issuance of building permit subsequently suspended or revoked, 41 A.L.R.4th 99.

State’s liability to one injured by improperly licensed driver, 41 A.L.R.4th 111.

Governmental tort liability for failure to provide police protection to specifically threatened crime victim, 46 A.L.R.4th 948.

Liability of governmental entity for damage to motor vehicle or injury to person riding therein resulting from collision between vehicle and domestic animal at large in street or highway, 52 A.L.R.4th 1200.

Insufficiency of notice of claim against municipality as regards statement of place where accident occurred, 69 A.L.R.4th 484.

Municipal liability for negligent fire inspection and subsequent enforcement, 69 A.L.R.4th 739.

Liability of municipality or other governmental unit for failure to provide police protection from crime, 90 A.L.R.5th 273.

Claims arising from governmental conduct causing damage to plaintiff’s real property as within discretionary function exception of Federal Tort Claims Act (28 U.S.C.A. § 2680(a)), 167 A.L.R. Fed. 1.

Liability of United States for failure to warn of danger or hazard not directly created by act or omission of federal government and not in national parks as affected by “discretionary function or duty” exception to 169 A.L.R. Fed. 421.

Liability of United States for failure to warn of danger or hazard resulting from governmental act or omission as affected by “discretionary function or duty” exception to Federal Tort Claims Act (28 U.S.C.A. § 2680(a)), 170 A.L.R. Fed. 365.

Liability of United States for failure to warn local police or individuals of discharge, release, or escape of person who is deemed dangerous to public as affected by “discretionary act or duty” exception to Federal Tort Claims Act, Federal Tort Claims Act, 171 A.L.R. Fed. 655.

Claims arising from conduct of governmental employer in administering or failing to administer medical care as within discretionary function exception of Federal Tort Claims Act (28 U.S.C.A. § 2680(a)), 172 A.L.R. Fed. 407.

Liability of United States, under Federal Tort Claims Act (28 U.S.C.A. §§ 1346, 2680), for damages caused by ingestion or administration of government-approved drugs, vaccines, and medications, 173 A.L.R. Fed. 431.

Construction and application of Federal Tort Claims Act (FTCA) exception in 28 U.S.C.A. § 3680(c), concerning claims arising in respect of assessment or collection of any tax or customs duty, or detention of goods or merchandise by any officer of customs or excise or any other law-enforcement officer, 173 A.L.R. Fed. 465.

Law Reviews.

Municipal Corporations — Governmental Immunity — Political Subdivisions Liable for Non-Discretionary Tortious Conduct, 51 N.D. L. Rev. 885 (1975).

Summary of significant decisions rendered by North Dakota Supreme Court in 1989 relating to government immunity and liability, 65 N.D. L. Rev. 574 (1989).

32-12.1-02. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Claim” means any claim permitted by this chapter brought against a political subdivision for an injury caused by a political subdivision or an employee of the political subdivision acting within the scope of the employee’s employment or office.
  2. “Commissioner” means the insurance commissioner.
  3. “Employee” means any officer, employee, board member, volunteer, or servant of a political subdivision, whether elected or appointed and whether or not compensated. The term does not include an independent contractor, or any person performing tasks the details of which the political subdivision has no right to control.
  4. “Injury” means personal injury, death, or property damage.
  5. “Personal injury” includes bodily injury, mental injury, sickness, or disease sustained by a person, and injury to a person’s rights or reputation.
  6. “Political subdivision”:
    1. Includes all counties, townships, park districts, school districts, cities, public nonprofit corporations, administrative or legal entities responsible for administration of joint powers agreements, and any other units of local government which are created either by statute or by the Constitution of North Dakota for local government or other public purposes, except no new units of government or political subdivisions are created or authorized by this chapter.
    2. Does not include nor may it be construed to mean either the state of North Dakota or any of the several agencies, boards, bureaus, commissions, councils, courts, departments, institutions, or offices of government which collectively constitute the government of the state of North Dakota.
  7. “Property damage” includes injury to or destruction of tangible or intangible property.
  8. “Public nonprofit corporation” means a nonprofit corporation that performs a governmental function and is funded, entirely or partly, by the state, a city, county, park district, school district, or township.

Source:

S.L. 1977, ch. 303, § 2; 1987, ch. 405, § 1; 1989, ch. 412, § 1; 1995, ch. 329, § 7; 2005, ch. 299, § 1; 2007, ch. 291, § 1.

Notes to Decisions

Injury.

A personal injury, as contemplated by this chapter, includes physical injuries, disease, sickness, mental anguish and suffering; however, in order to recover for mental anguish and suffering, there must be a direct causal connection between the alleged injuries and the acts of the political subdivision which are not discretionary. McCroskey v. Cass County, 303 N.W.2d 330, 1981 N.D. LEXIS 255 (N.D. 1981).

Upon remand of the case to the trial court, the trial court under the authority of N.D.C.C. § 1-02-39 could consider the factors listed in that statute to determine the appropriate limitations period to be applied to the lessees’ contract claims against the political subdivision. The trial court needed to do so because it applied the wrong limitations period to determine that the contract claims were barred against the political subdivision, especially given the legislature’s intent under N.D.C.C. § 32-12.1-01 that claims against political subdivisions be treated separately from claims against the state, that tort claims as recognized by the factors set forth in N.D.C.C. § 32-12.1-02, that state tort liability was separate from political subdivision liability as contemplated under N.D.C.C. § 32-12.2-01, and that the legislature had provided a “catch-all” limitations provision for actions against only the state and its employees under N.D.C.C. § 28-01-22.1. Finstad v. Ransom-Sargent Water Users, Inc., 2011 ND 215, 812 N.W.2d 323, 2011 N.D. LEXIS 216 (N.D. 2011).

Collateral References.

State’s liability for personal injuries from criminal attack in state park, 59 A.L.R.4th 1236.

Tort liability of public authority for failure to remove parentally abused or neglected children from parents’ custody, 60 A.L.R.4th 942.

State and local government liability for injury or death of bicyclist due to defect or obstruction in public bicycle path, 68 A.L.R.4th 204.

Municipal liability for negligent performance of building inspector’s duties, 24 A.L.R.5th 200.

Law Reviews.

Case Comment: Schools — District Liability: Political Subdivision Liability and School Duties Prevail Over Recreational Use Immunity: M.M. v. Fargo Public School District No. 1, 2010 ND 102, 783 N.W.2d 806, see 86 N.D. L. Rev. 689 (2010).

32-12.1-03. Liability of political subdivisions — Limitations. [Effective through June 30, 2022]

  1. Each political subdivision is liable for money damages for injuries when the injuries are proximately caused by the negligence or wrongful act or omission of any employee acting within the scope of the employee’s employment or office under circumstances in which the employee would be personally liable to a claimant in accordance with the laws of this state, or injury caused from some condition or use of tangible property, real or personal, under circumstances in which the political subdivision, if a private person, would be liable to the claimant. The enactment of a law, rule, regulation, or ordinance to protect any person’s health, safety, property, or welfare does not create a duty of care on the part of the political subdivision, its employees, or its agents, if that duty would not otherwise exist.
  2. The liability of political subdivisions under this chapter is limited to a total of two hundred fifty thousand dollars per person and one million dollars for any number of claims arising from any single occurrence regardless of the number of political subdivisions, or employees of such political subdivisions, which are involved in that occurrence. A political subdivision may not be held liable, or be ordered to indemnify an employee held liable, for punitive or exemplary damages.
  3. A political subdivision or a political subdivision employee may not be held liable under this chapter for any of the following claims:
    1. A claim based upon an act or omission of a political subdivision employee exercising due care in the execution of a valid or invalid statute or regulation.
    2. The decision to undertake or the refusal to undertake any legislative or quasi-legislative act, including the decision to adopt or the refusal to adopt any statute, charter, ordinance, order, regulation, resolution, or resolve.
    3. The decision to undertake or the refusal to undertake any judicial or quasi-judicial act, including the decision to grant, to grant with conditions, to refuse to grant, or to revoke any license, permit, order, or other administrative approval or denial.
    4. The decision to perform or the refusal to exercise or perform a discretionary function or duty, whether or not such discretion is abused and whether or not the statute, charter, ordinance, order, resolution, regulation, or resolve under which the discretionary function or duty is performed is valid or invalid.
    5. Injury directly or indirectly caused by a person who is not employed by the political subdivision.
    6. A claim relating to injury directly or indirectly caused by the performance or nonperformance of a public duty, including:
      1. Inspecting, licensing, approving, mitigating, warning, abating, or failing to so act regarding compliance with or the violation of any law, rule, regulation, or any condition affecting health or safety.
      2. Enforcing, monitoring, or failing to enforce or monitor conditions of sentencing, parole, probation, or juvenile supervision.
      3. Providing or failing to provide law enforcement services in the ordinary course of a political subdivision’s law enforcement operations.
      4. Providing or failing to provide fire protection services in the ordinary course of a political subdivision’s fire protection operations.
    7. “Public duty” does not include action of the political subdivision or a political subdivision employee under circumstances in which a special relationship can be established between the political subdivision and the injured party. A special relationship is demonstrated if all of the following elements exist:
      1. Direct contact between the political subdivision and the injured party.
      2. An assumption by the political subdivision, by means of promises or actions, of an affirmative duty to act on behalf of the party who allegedly was injured.
      3. Knowledge on the part of the political subdivision that inaction of the political subdivision could lead to harm.
      4. The injured party’s justifiable reliance on the political subdivision’s affirmative undertaking, occurrence of the injury while the injured party was under the direct control of the political subdivision, or the political subdivision action increases the risk of harm.
  4. This chapter does not obligate political subdivisions for an amount that is more than the limitations upon liability imposed by this chapter. Subject to this chapter, any payments to persons constitute payment in full of any compromised claim or judgment or any final judgment under this chapter.
  5. Notwithstanding this chapter, a political subdivision or its insurance carrier is not liable for any claim arising out of the conduct of a ridesharing arrangement, as defined in section 8-02-07.
  6. A political subdivision is not liable for any claim based on an act or omission in the designation, repair, operation, or maintenance of a minimum maintenance road if that designation has been made in accordance with sections 24-07-35 through 24-07-37 and if the road has been maintained at a level to serve occasional and intermittent traffic.
  7. Any party to an action against a political subdivision or a political subdivision employee acting within the scope of employment as defined in this chapter shall comply with applicable rules of civil procedure when requesting documents or other information in the possession or control of the political subdivision.

Source:

S.L. 1977, ch. 303, § 3; 1981, ch. 131, § 5; 1987, ch. 261, § 2; 1987, ch. 320, § 4; 1987, ch. 406, § 1; 1995, ch. 329, § 8; 1999, ch. 303, § 3; 2005, ch. 299, § 2; 2015, ch. 242, § 1, eff August 1, 2015; 2021, SB2067, § 1, § 1, eff August 1, 2021.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 242, S.L. 2015 became effective August 1, 2015.

Note.

Section 32-12.1-03 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 1 of Chapter 258, Session Laws 2021, House Bill 1057; and Section 1 of Chapter 259, Session Laws 2021, Senate Bill 2067.

Cross-References.

Government self-insurance pools, see N.D.C.C. ch. 26.1-23.1.

Notes to Decisions

Constitutionality.

N.D.C.C. § 32-12.1-03(2) did not violate N.D. Const. art. I, § 9, as it was not an absolute bar to a money damages remedy and did not set an arbitrarily low limit that was the functional equivalent of an absolute bar. Larimore Pub. Sch. Dist. No. 44 v. Aamodt, 2018 ND 71, 908 N.W.2d 442, 2018 N.D. LEXIS 75 (N.D. 2018).

N.D.C.C. § 32-12.1-03(2) did not violate N.D. Const. art. I, § 13, as it only limited the amount of recovery ultimately allowed against a political subdivision. Larimore Pub. Sch. Dist. No. 44 v. Aamodt, 2018 ND 71, 908 N.W.2d 442, 2018 N.D. LEXIS 75 (N.D. 2018).

Under intermediate scrutiny, N.D.C.C. § 32-12.1-03(2) did not violate N.D. Const. art. I, § 21, as it did not treat individuals differently on its face, and establishing an aggregate cap was sufficiently close to the legitimate legislative goals of providing affordable liability insurance for political subdivisions within applicable fiscal constraints. Larimore Pub. Sch. Dist. No. 44 v. Aamodt, 2018 ND 71, 908 N.W.2d 442, 2018 N.D. LEXIS 75 (N.D. 2018).

N.D.C.C. § 32-12.1-03(2) did not violate N.D. Const. art. IV, § 13, as it was written in general terms and operated the same for all who were similarly situated. Larimore Pub. Sch. Dist. No. 44 v. Aamodt, 2018 ND 71, 908 N.W.2d 442, 2018 N.D. LEXIS 75 (N.D. 2018).

Condition or Use of Real Property.

Under subsection (1) of this section a political subdivision is liable for injury caused from a condition or use of real property only under those circumstances in which a private person would be liable for such injury; this provision unambiguously makes the liability protections of N.D.C.C. ch. 53-08 applicable to political subdivisions in the same manner and under the same circumstances as those protections are applicable to a private owner of recreational land. Fastow v. Burleigh County Water Resource Dist., 415 N.W.2d 505, 1987 N.D. LEXIS 427 (N.D. 1987).

Discretionary Functions.

Where claim against township was based entirely upon the actions of the township’s representatives in refusing to grant approval to move a house into the township until all requirements of the township zoning ordinance had been satisfied, the claim was based on a discretionary process performed by the township representatives and the township was immune from liability on such claim irrespective of whether or not the representatives abused their discretion or whether or not the zoning ordinance, or parts of it, were invalid. McLain v. Midway Township, 326 N.W.2d 196, 1982 N.D. LEXIS 384 (N.D. 1982).

The distinction between discretionary and ministerial acts is often one of degree and is determined by a consideration and evaluation of a number of competing factors under the particular circumstances of each case. Miles Homes Div. of Insilco Corp. v. City of Westhope, 458 N.W.2d 321, 1990 N.D. LEXIS 142 (N.D. 1990).

An auditor’s duty to search the file of tax payment receipts for a secondary address of the taxpayer and to mail the notice to that address upon return of an undelivered notice mailed in accordance with this section is not a discretionary act within the meaning of subdivision (3)(c) of this section. Miles Homes Div. of Insilco Corp. v. City of Westhope, 458 N.W.2d 321, 1990 N.D. LEXIS 142 (N.D. 1990).

City police officers were immune from liability for plaintiffs’ state law claims for malicious prosecution and false arrest/false imprisonment, regardless of whether the officers were negligent or whether they exercised due care when they arrested plaintiffs, because officer’s decision to arrest plaintiffs was a discretionary function. Veneklase v. City of Fargo, 904 F. Supp. 1038, 1995 U.S. Dist. LEXIS 19929 (D.N.D. 1995).

Application of the discretionary function exception is determined by the nature of the conduct, not the status of the actor, and whether the conduct or choice is of the kind the discretionary function was designed to shield. Olson v. City of Garrison, 539 N.W.2d 663, 1995 N.D. LEXIS 197 (N.D. 1995).

City held not liable in tort for property damage caused by a broken water main. Olson v. City of Garrison, 539 N.W.2d 663, 1995 N.D. LEXIS 197 (N.D. 1995).

The discretionary function exception did not apply where the decision whether the plaintiff’s dogs posed a danger to the deputies or to others, which would justify the dogs’ destruction, implicated no social, economic or political policy and was merely an ordinary individualized judgment made by the deputies as part of their routine work duties. Kautzman v. McDonald, 2001 ND 20, 621 N.W.2d 871, 2001 N.D. LEXIS 21 (N.D. 2001).

City’s discretionary immunity, in deciding which water mains to replace, barred property owners’ negligence claim against the city based on damages from flooding on their property after a water main broke. Knutson v. City of Fargo, 2006 ND 97, 714 N.W.2d 44, 2006 N.D. LEXIS 108 (N.D. 2006).

Plaintiff father’s claims against county defendants for negligent and intentional infliction of emotional distress were barred by the discretionary function exception as the decisions made by the county officials relative to the children’s supervision and visitation implicated social, economic, and public policy considerations and the decisions made by the county regarding the childrens’ supervision and visitation were the type of decisions contemplated under the discretionary function exception and such decisions were to be afforded protection and shielded from judicial second-guessing. Geraci v. Women's Alliance, Inc., 436 F. Supp. 2d 1022, 2006 U.S. Dist. LEXIS 45606 (D.N.D. 2006).

Federal Tort Claims Act.

Language of subsection (3) comes directly from the language used in the Federal Tort Claims Act. Olson v. City of Garrison, 539 N.W.2d 663, 1995 N.D. LEXIS 197 (N.D. 1995).

Giving of Erroneous Information by Municipal Corporation.

The giving of information to the public by an urban renewal agency as to its authority and methods was a discretionary function; and agency was therefore immune from suit on behalf of person who claimed damages as a result of erroneous information negligently given by the agency. Sande v. Grand Forks, 269 N.W.2d 93, 1978 N.D. LEXIS 156 (N.D. 1978).

Grounds for Liability.

Subsection (1) of this section, provides two separate and independent grounds upon which a political subdivision can be held liable for injuries: (1) a political subdivision can be liable for injuries caused by some condition or use of property in the same manner as a private person, and (2) a political subdivision can be liable for injuries caused by the negligence or wrongful act or omission of an employee acting within the scope of the employee’s employment. Fastow v. Burleigh County Water Resource Dist., 415 N.W.2d 505, 1987 N.D. LEXIS 427 (N.D. 1987).

Insurance Coverage.

If a political subdivision has no liability insurance coverage, its exposure for liabilities is limited to $250,000 per person and $500,000 per occurrence. If, however, a political subdivision purchases insurance coverage in excess of those amounts, an injured plaintiff may receive judgment in the amount of the insurance coverage. Fastow v. Burleigh County Water Resource Dist., 415 N.W.2d 505, 1987 N.D. LEXIS 427 (N.D. 1987).

Joint Liability.

Because N.D.C.C. ch. 32-12.1 does not immunize employees from their reckless, grossly negligent, willful, or wanton misconduct, a political subdivision and its employee may be jointly liable if an employee caused injury while acting within the scope of his employment in a reckless or grossly negligent manner or a willful or wanton manner. Binstock v. Ft. Yates Pub. Sch. Dist. No. 4, 463 N.W.2d 837, 1990 N.D. LEXIS 251 (N.D. 1990).

Nondiscretionary Action.

Where statute and jail regulation required a peace officer to notify a person’s family when the officer places the person in jail or a hospital because of suspected intoxication, and where jail regulation for release of intoxicated persons required an observation of the person to be made to determine if the conditions were such to permit a release, complaint by plaintiff, who had been placed in jail for intoxication, which alleged mental anguish and suffering due to peace officer’s and jailer’s failure to notify his family and make the required observation which could have triggered his release, stated a claim against the county and its employees which involved nondiscretionary action. McCroskey v. Cass County, 303 N.W.2d 330, 1981 N.D. LEXIS 255 (N.D. 1981).

Order granting summary judgment in favor of a township in parents’ wrongful death action was reversed because discretionary function immunity under N.D.C.C. § 32-12.1-03(3) did not shield the township from liability if it had actual knowledge of an unusually dangerous or hazardous condition of a section line and the parents alleged that the township had been told of the condition of the section line. Kappenman v. Klipfel, 2009 ND 89, 765 N.W.2d 716, 2009 N.D. LEXIS 96 (N.D. 2009).

Personal Injury Exception.

The phrase “personal injury arising out of the execution of any…discretionary function” in the concluding paragraph of subsection 3, means a personal injury arising directly out of the execution of the discretionary function or decision itself, regardless of whether it is caused by an allegedly negligent affirmative act or omission to act. Peterson v. Traill County, 1999 ND 197, 601 N.W.2d 268, 1999 N.D. LEXIS 214 (N.D. 1999).

County was not entitled to governmental immunity for personal injuries sustained by a county jail detainee as a result of jail employees’ failure to provide him with medical treatment for alcohol withdrawal. Peterson v. Traill County, 1999 ND 197, 601 N.W.2d 268, 1999 N.D. LEXIS 214 (N.D. 1999).

Punitive Damages.

Mere allegation of malice was not sufficient to withstand summary judgment of plaintiff’s claim for punitive damages in action against police officers for malicious prosecution and false arrest/false imprisonment following plaintiff’s arrest for violating residential picketing ordinance. Copper v. City of Fargo, 905 F. Supp. 680, 1994 U.S. Dist. LEXIS 20819 (D.N.D. 1994).

Recreational Use of Property.

Applying the recreational use statute to the political subdivision liability statute completely circumvents the legislature’s intent under this section, leading to an unintended and absurd result. Hovland v. City of Grand Forks, 1997 ND 95, 563 N.W.2d 384, 1997 N.D. LEXIS 89 (N.D. 1997).

City was not immune under the recreational use statute from plaintiff’s claims for personal injuries she sustained while using city bike path. Hovland v. City of Grand Forks, 1997 ND 95, 563 N.W.2d 384, 1997 N.D. LEXIS 89 (N.D. 1997).

Respondeat Superior Liability for Municipality.

Although N.D.C.C. ch. 32-12.1 immunizes employees from their ordinary negligence while acting within the scope of their employment, it does not negate the liability of political subdivisions for injuries caused by employees acting within the scope of their employment, whether or not such acts are those of ordinary negligence or reckless or grossly negligent conduct, or willful or wanton misconduct. The political subdivision remains liable under the doctrine of respondeat superior for all acts of its employees performed within the scope of employment to the maximum amount specified in subdivision 2 of this section. Binstock v. Ft. Yates Pub. Sch. Dist. No. 4, 463 N.W.2d 837, 1990 N.D. LEXIS 251 (N.D. 1990).

Scope of Employment.

All of the elements of Restatement (Second) of Agency § 228 must be considered to assess whether an employee was acting within the scope of employment when committing an intentional act. Nelson v. Gillette, 1997 ND 205, 571 N.W.2d 332, 1997 N.D. LEXIS 263 (N.D. 1997).

Special Relationship.

Because no special relationship was claimed under N.D.C.C. § 32-12.1-03(3)(g), the trial court properly granted summary judgment in favor of a political subdivision and its employee on plaintiffs' negligence claim. Tangedal v. Mertens, 2016 ND 170, 883 N.W.2d 871, 2016 N.D. LEXIS 170 (N.D. 2016).

Use of Force by Police.

A city was not liable, as employer, for excessive use of force where, in an arrest for intoxicated driving, police officers struck the knee of the accused with a police baton, shattering the patella into small pieces, resulting in permanent impairment to the accused’s use of his right leg, where the jury found that such force used was not unreasonable or unnecessary. Fronk v. Meager, 417 N.W.2d 807, 1987 N.D. LEXIS 451 (N.D. 1987).

Workers Compensation Bureau.

The workers compensation bureau should not receive a prorated subrogation interest when a benefit recipient recovers against a third-party tortfeasor less than the total damages sustained by the recipient because the tortfeasor is a political subdivision protected by the maximum liability limit provided in this section. Waith v. North Dakota's Workmen's Compensation Bureau, 409 N.W.2d 94, 1987 N.D. LEXIS 340 (N.D. 1987).

DECISIONS UNDER PRIOR LAW

Actual Notice.

Under notice provisions of former section 4, chapter 295, Laws 1975, fact that political subdivision employee had actual notice of an incident or injury was insufficient to satisfy the requirement of a written notice or claim. Besette v. Enderlin Sch. Dist., 288 N.W.2d 67, 1980 N.D. LEXIS 181 (N.D. 1980).

Mandatory Time Requirements.

Requirement in former section 4, chapter 295, Laws 1975, that claim be filed within ninety days, was mandatory, not directory, and failure of adult to comply precluded right to bring action against political subdivision; however, time period for minor was ninety days after minor reached the age of eighteen years. Besette v. Enderlin Sch. Dist., 288 N.W.2d 67, 1980 N.D. LEXIS 181 (N.D. 1980).

Collateral References.

Existence of actionable defect in street or highway proper as question for court or for jury, 1 A.L.R.3d 496.

Liability of governmental entity or public officer for personal injury or damages arising out of vehicular accident due to negligent or defective design of a highway, 45 A.L.R.3d 875.

Modern status of rule excusing governmental unit from tort liability on theory that only general, not particularly, duty was owed under circumstances, 38 A.L.R.4th 1194.

Liability of governmental entity to builder or developer for negligent issuance of building permit subsequently suspended or revoked, 41 A.L.R.4th 99.

State’s liability to one injured by improperly licensed driver, 41 A.L.R.4th 111.

Validity and construction of statute or ordinance limiting the kinds or amount of actual damages recoverable in tort action against governmental unit, 43 A.L.R.4th 19.

Failure to restrain drunk driver as ground of liability of state or local government unit or officer, 48 A.L.R.4th 320.

Liability of governmental entity for damage to motor vehicle or injury to person riding therein resulting from collision between vehicle and domestic animal at large in street or highway, 52 A.L.R.4th 1200.

Notice of claim requirement, minority as affecting local government tort liability, 58 A.L.R.4th 402.

Governmental tort liability as to highway median barriers, 58 A.L.R.4th 559.

State’s liability for personal injuries from criminal attack in state park, 59 A.L.R.4th 1236.

Legal aspects of speed bumps, 60 A.L.R.4th 1249.

Insufficiency of notice of claim against municipality as regards statement of place where accident occurred, 69 A.L.R.4th 484.

Municipal liability for negligent fire inspection and subsequent enforcement, 69 A.L.R.4th 739.

Liability of local government entity for injury resulting from use of outdoor playground equipment at municipally owned park or recreation area, 73 A.L.R.4th 496.

Right of one governmental subdivision to sue another such subdivision for damages, 11 A.L.R.5th 630.

Excessiveness or inadequacy of punitive damages awarded in personal injury or death cases, 12 A.L.R.5th 195.

Recovery of punitive damages for injuries resulting from transport, handling, and storage of toxic or hazardous substances, 39 A.L.R.5th 763.

Sufficiency of notice of claim against local governmental unit as regards identity, name, address, and residence of claimant, 53 A.L.R.5th 617.

Waiver of, or estoppel to assert, failure to give or defects in notice of claim against state or local political subdivision — modern status, 64 A.L.R.5th 519.

Tort liability of public schools and institutions of higher learning for accident involving motor vehicle operated by student, 85 A.L.R.5th 301.

Comment Note: Governmental Liability for Failure to Reduce Vegetation Obscuring View at Railroad Crossing or at Street or Highway Intersection. 50 A.L.R.6th 95.

Liability of Police Officer for Assault and Battery Arising from Use of Stun Gun or Taser Device. 52 A.L.R.6th 623.

Municipal Liability for Damage Resulting from Obstruction or Clogging of Drain or Sewer. 54 A.L.R.6th 201.

Law Reviews.

Political Subdivision Liability in North Dakota: Current Status, Future Prospects, 62 N.D. L. Rev. 381 (1986).

Sovereign Immunity — Judicial Abrogation of North Dakota’s Sovereign Immunity Results in Its Possible Legislative Reassertion and Legislation to Provide Injured Parties with a Remedy for the Torts Committed by the State or Its Agents, 71 N.D. L. Rev. 761 (1995).

As to a public entity’s potential tort liability based on a publicly-employed social worker’s sexual relationship with a developmentally disabled child he was counseling, see Master and Servant — Incompetency of Servant: North Dakota Adopts the Restatement’s “Scope of Employment” Test and Explores the Phenomenon of “Transference,” 75 N.D. L. Rev. 137 (1999).

North Dakota Supreme Court Review (Ficek v. Morken), 81 N.D. L. Rev. 585 (2005).

Case Comment: Schools — District Liability: Political Subdivision Liability and School Duties Prevail Over Recreational Use Immunity: M.M. v. Fargo Public School District No. 1, 2010 ND 102, 783 N.W.2d 806, see 86 N.D. L. Rev. 689 (2010).

32-12.1-03. Liability of political subdivisions — Limitations. [Effective July 1, 2022]

  1. Each political subdivision is liable for money damages for injuries when the injuries are proximately caused by the negligence or wrongful act or omission of any employee acting within the scope of the employee’s employment or office under circumstances in which the employee would be personally liable to a claimant in accordance with the laws of this state, or injury caused from some condition or use of tangible property, real or personal, under circumstances in which the political subdivision, if a private person, would be liable to the claimant. The enactment of a law, rule, regulation, or ordinance to protect any person’s health, safety, property, or welfare does not create a duty of care on the part of the political subdivision, its employees, or its agents, if that duty would not otherwise exist.
  2. The liability of political subdivisions under this chapter is limited to a total of three hundred seventy-five thousand dollars per person and one million dollars for any number of claims arising from any single occurrence regardless of the number of political subdivisions, or employees of such political subdivisions, which are involved in that occurrence. A political subdivision may not be held liable, or be ordered to indemnify an employee held liable, for punitive or exemplary damages. The liability limits under this subsection must be adjusted annually as follows:
    1. On July 1, 2023, a total of four hundred six thousand two hundred and fifty dollars per person and one million six hundred twenty-five thousand dollars for any single occurrence.
    2. On July 1, 2024, a total of four hundred thirty-seven thousand five hundred dollars per person and one million seven hundred fifty thousand dollars for any single occurrence.
    3. On July 1, 2025, a total of four hundred sixty-eight thousand seven hundred fifty dollars per person and one million eight hundred seventy-five thousand dollars per occurrence.
    4. On July 1, 2026, a total of five hundred thousand dollars per person and two million dollars per occurrence.
  3. A political subdivision or a political subdivision employee may not be held liable under this chapter for any of the following claims:
    1. A claim based upon an act or omission of a political subdivision employee exercising due care in the execution of a valid or invalid statute or regulation.
    2. The decision to undertake or the refusal to undertake any legislative or quasi-legislative act, including the decision to adopt or the refusal to adopt any statute, charter, ordinance, order, regulation, resolution, or resolve.
    3. The decision to undertake or the refusal to undertake any judicial or quasi-judicial act, including the decision to grant, to grant with conditions, to refuse to grant, or to revoke any license, permit, order, or other administrative approval or denial.
    4. The decision to perform or the refusal to exercise or perform a discretionary function or duty, whether or not such discretion is abused and whether or not the statute, charter, ordinance, order, resolution, regulation, or resolve under which the discretionary function or duty is performed is valid or invalid.
    5. Injury directly or indirectly caused by a person who is not employed by the political subdivision.
    6. A claim relating to injury directly or indirectly caused by the performance or nonperformance of a public duty, including:
      1. Inspecting, licensing, approving, mitigating, warning, abating, or failing to so act regarding compliance with or the violation of any law, rule, regulation, or any condition affecting health or safety.
      2. Enforcing, monitoring, or failing to enforce or monitor conditions of sentencing, parole, probation, or juvenile supervision.
      3. Providing or failing to provide law enforcement services in the ordinary course of a political subdivision’s law enforcement operations.
      4. Providing or failing to provide fire protection services in the ordinary course of a political subdivision’s fire protection operations.
    7. “Public duty” does not include action of the political subdivision or a political subdivision employee under circumstances in which a special relationship can be established between the political subdivision and the injured party. A special relationship is demonstrated if all of the following elements exist:
      1. Direct contact between the political subdivision and the injured party.
      2. An assumption by the political subdivision, by means of promises or actions, of an affirmative duty to act on behalf of the party who allegedly was injured.
      3. Knowledge on the part of the political subdivision that inaction of the political subdivision could lead to harm.
      4. The injured party’s justifiable reliance on the political subdivision’s affirmative undertaking, occurrence of the injury while the injured party was under the direct control of the political subdivision, or the political subdivision action increases the risk of harm.
  4. This chapter does not obligate political subdivisions for an amount that is more than the limitations upon liability imposed by this chapter. Subject to this chapter, any payments to persons constitute payment in full of any compromised claim or judgment or any final judgment under this chapter.
  5. Notwithstanding this chapter, a political subdivision or its insurance carrier is not liable for any claim arising out of the conduct of a ridesharing arrangement, as defined in section 8-02-07.
  6. A political subdivision is not liable for any claim based on an act or omission in the designation, repair, operation, or maintenance of a minimum maintenance road if that designation has been made in accordance with sections 24-07-35 through 24-07-37 and if the road has been maintained at a level to serve occasional and intermittent traffic.
  7. Any party to an action against a political subdivision or a political subdivision employee acting within the scope of employment as defined in this chapter shall comply with applicable rules of civil procedure when requesting documents or other information in the possession or control of the political subdivision.

Source:

S.L. 1977, ch. 303, § 3; 1981, ch. 131, § 5; 1987, ch. 261, § 2; 1987, ch. 320, § 4; 1987, ch. 406, § 1; 1995, ch. 329, § 8; 1999, ch. 303, § 3; 2005, ch. 299, § 2; 2015, ch. 242, § 1, eff August 1, 2015; 2021, SB2067, § 1, § 1, eff August 1, 2021; 2021, ch. 258, § 1, eff July 1, 2022.

32-12.1-03. Liability of political subdivisions — Limitations. [Effective August 1, 2027]

  1. Each political subdivision is liable for money damages for injuries when the injuries are proximately caused by the negligence or wrongful act or omission of any employee acting within the scope of the employee’s employment or office under circumstances in which the employee would be personally liable to a claimant in accordance with the laws of this state, or injury caused from some condition or use of tangible property, real or personal, under circumstances in which the political subdivision, if a private person, would be liable to the claimant. The enactment of a law, rule, regulation, or ordinance to protect any person’s health, safety, property, or welfare does not create a duty of care on the part of the political subdivision, its employees, or its agents, if that duty would not otherwise exist.
  2. The liability of political subdivisions under this chapter is limited to a total of two hundred fifty thousand dollars per person and one million dollars for any number of claims arising from any single occurrence regardless of the number of political subdivisions, or employees of such political subdivisions, which are involved in that occurrence. A political subdivision may not be held liable, or be ordered to indemnify an employee held liable, for punitive or exemplary damages.
  3. A political subdivision or a political subdivision employee may not be held liable under this chapter for any of the following claims:
    1. A claim based upon an act or omission of a political subdivision employee exercising due care in the execution of a valid or invalid statute or regulation.
    2. The decision to undertake or the refusal to undertake any legislative or quasi-legislative act, including the decision to adopt or the refusal to adopt any statute, charter, ordinance, order, regulation, resolution, or resolve.
    3. The decision to undertake or the refusal to undertake any judicial or quasi-judicial act, including the decision to grant, to grant with conditions, to refuse to grant, or to revoke any license, permit, order, or other administrative approval or denial.
    4. The decision to perform or the refusal to exercise or perform a discretionary function or duty, whether or not such discretion is abused and whether or not the statute, charter, ordinance, order, resolution, regulation, or resolve under which the discretionary function or duty is performed is valid or invalid.
    5. Injury directly or indirectly caused by a person who is not employed by the political subdivision.
    6. A claim relating to injury directly or indirectly caused by the performance or nonperformance of a public duty, including:
      1. Inspecting, licensing, approving, mitigating, warning, abating, or failing to so act regarding compliance with or the violation of any law, rule, regulation, or any condition affecting health or safety.
      2. Enforcing, monitoring, or failing to enforce or monitor conditions of sentencing, parole, probation, or juvenile supervision.
      3. Providing or failing to provide law enforcement services in the ordinary course of a political subdivision’s law enforcement operations.
      4. Providing or failing to provide fire protection services in the ordinary course of a political subdivision’s fire protection operations.
    7. “Public duty” does not include action of the political subdivision or a political subdivision employee under circumstances in which a special relationship can be established between the political subdivision and the injured party. A special relationship is demonstrated if all of the following elements exist:
      1. Direct contact between the political subdivision and the injured party.
      2. An assumption by the political subdivision, by means of promises or actions, of an affirmative duty to act on behalf of the party who allegedly was injured.
      3. Knowledge on the part of the political subdivision that inaction of the political subdivision could lead to harm.
      4. The injured party’s justifiable reliance on the political subdivision’s affirmative undertaking, occurrence of the injury while the injured party was under the direct control of the political subdivision, or the political subdivision action increases the risk of harm.
  4. This chapter does not obligate political subdivisions for an amount that is more than the limitations upon liability imposed by this chapter. Subject to this chapter, any payments to persons constitute payment in full of any compromised claim or judgment or any final judgment under this chapter.
  5. Notwithstanding this chapter, a political subdivision or its insurance carrier is not liable for any claim arising out of the conduct of a ridesharing arrangement, as defined in section 8-02-07.
  6. A political subdivision is not liable for any claim based on an act or omission in the designation, repair, operation, or maintenance of a minimum maintenance road if that designation has been made in accordance with sections 24-07-35 through 24-07-37 and if the road has been maintained at a level to serve occasional and intermittent traffic.
  7. Any party to an action against a political subdivision or a political subdivision employee acting within the scope of employment as defined in this chapter shall comply with applicable rules of civil procedure when requesting documents or other information in the possession or control of the political subdivision.

Source:

S.L. 1977, ch. 303, § 3; 1981, ch. 131, § 5; 1987, ch. 261, § 2; 1987, ch. 320, § 4; 1987, ch. 406, § 1; 1995, ch. 329, § 8; 1999, ch. 303, § 3; 2005, ch. 299, § 2; 2015, ch. 242, § 1, eff August 1, 2015; 2021, SB2067, § 1, § 1, eff August 1, 2021; 2021, ch. 259, § 1, eff August 1, 2021.

32-12.1-04. Political subdivision to be named in action — Personal liability of employees — Indemnification of claims and final judgments.

  1. An action for injuries proximately caused by the alleged negligence, wrongful act, or omission of an employee of a political subdivision occurring within the scope of the employee’s employment or office shall be brought against the political subdivision. If there is any question concerning whether the alleged negligence, wrongful act, or omission occurred within the scope of employment or office of the employee, the employee may be named as a party to the action and the issue may be tried separately. A political subdivision must defend the employee until the court determines the employee was acting outside the scope of the employee’s employment or office.
  2. An employee shall not be personally liable for money damages for injuries when the injuries are proximately caused by the negligence, wrongful act, or omission of the employee acting within the scope of the employee’s employment or office.
  3. No employee may be held liable in the employee’s personal capacity for acts or omissions of the employee occurring within the scope of the employee’s employment unless the acts or omissions constitute reckless or grossly negligent conduct, or willful or wanton misconduct. An employee may be personally liable for money damages for injuries when the injuries are proximately caused by the negligence, wrongful act, or omission of the employee acting outside the scope of the employee’s employment or office. The plaintiff in such an action bears the burden of proof to show by clear and convincing evidence that the employee was either acting outside the scope of the employee’s employment or office or the employee was acting within the scope of employment in a reckless, grossly negligent, willful, or wanton manner. Employees may be liable for punitive or exemplary damages. The extent to which an employee may be personally liable pursuant to this section and whether the employee was acting within the scope of employment or office shall be specifically stated in a final judgment.
  4. A political subdivision shall indemnify and save harmless an employee for any claim, whether groundless or not, and final judgment for any act or omission occurring within the scope of employment or office of the employee. The indemnification shall be made in the manner provided by this chapter and shall be subject to the limitations herein.

Source:

S.L. 1977, ch. 303, § 4; 1981, ch. 351, § 1; 1987, ch. 406, § 2.

Cross-References.

Law enforcement officers, state and political subdivisions to furnish counsel to defend, see N.D.C.C. § 44-08-11.

Notes to Decisions

Failure to Provide Copy of Statement.

Under this section, actions for ordinary negligence of an employee of a county are to be brought against the county; in such instance, N.D.C.C. § 31-08-07 required a statement taken by plaintiff from deputy, who was at the accident scene, be provided to the deputy, or the county, or the purpose of the statute would be avoided. Olson v. Griggs County, 491 N.W.2d 725, 1992 N.D. LEXIS 215 (N.D. 1992).

Joint Liability.

Because N.D.C.C. ch. 32-12.1 does not immunize employees from their reckless, grossly negligent, willful, or wanton misconduct, a political subdivision and its employee may be jointly liable if an employee caused injury while acting within the scope of his employment in a reckless, grossly negligent, willful or wanton manner. Binstock v. Ft. Yates Pub. Sch. Dist. No. 4, 463 N.W.2d 837, 1990 N.D. LEXIS 251 (N.D. 1990).

Municipality’s Liability.

Although N.D.C.C. ch. 32-12.1 immunizes employees from their ordinary negligence while acting within the scope of their employment, it does not negate the liability of political subdivisions for injuries caused by employees acting within the scope of their employment, whether or not such acts are those of ordinary negligence or reckless or grossly negligent conduct, or willful or wanton misconduct. The political subdivision remains liable under the doctrine of respondeat superior for all acts of its employees performed within the scope of employment to the maximum amount specified in N.D.C.C. § 32-12.1-03(2). Binstock v. Ft. Yates Pub. Sch. Dist. No. 4, 463 N.W.2d 837, 1990 N.D. LEXIS 251 (N.D. 1990).

Punitive Damages.

Mere allegation of malice was not sufficient to withstand summary judgment of plaintiff’s claim for punitive damages in action against police officers for malicious prosecution and false arrest/false imprisonment following plaintiff’s arrest for violating residential picketing ordinance. Copper v. City of Fargo, 905 F. Supp. 680, 1994 U.S. Dist. LEXIS 20819 (D.N.D. 1994).

Release from Liability of Employee.

Where the plaintiff released the employee from liability in a settlement agreement, the employer is also released from vicarious liability for the employee’s acts. Nelson v. Gillette, 1997 ND 205, 571 N.W.2d 332, 1997 N.D. LEXIS 263 (N.D. 1997).

Service of Process.

Action against various county and state officials in their official capacities was properly dismissed based on insufficient service of process where an arrestee served the officials by mail; NDRCivP 4(d)(2) required personal delivery. Sanderson v. Walsh County, 2006 ND 83, 712 N.W.2d 842, 2006 N.D. LEXIS 88 (N.D. 2006).

Use of Force by Police.

A city was not liable, as employer, for excessive use of force where, in an arrest for intoxicated driving, police officers struck the knee of the accused with a police baton, shattering the patella into small pieces, resulting in permanent impairment to the accused’s use of his right leg, where the jury found that such force used was not unreasonable or unnecessary. Fronk v. Meager, 417 N.W.2d 807, 1987 N.D. LEXIS 451 (N.D. 1987).

City police officers were immune from liability for plaintiffs’ state law claims for malicious prosecution and false arrest/false imprisonment, regardless of whether the officers were negligent or whether they exercised due care when they arrested plaintiffs, because officers’ decision to arrest plaintiffs was a discretionary function. Veneklase v. City of Fargo, 904 F. Supp. 1038, 1995 U.S. Dist. LEXIS 19929 (D.N.D. 1995).

Collateral References.

Probation officer’s liability for negligent supervision of probationer, 44 A.L.R.4th 638.

Notice of claim requirement, minority as affecting local government tort liability, 58 A.L.R.4th 402.

State and local government liability for injury or death of bicyclist due to defect or obstruction in public bicycle path, 68 A.L.R.4th 204.

Law Reviews.

As to a public entity’s potential tort liability based on a publicly-employed social worker’s sexual relationship with a developmentally disabled child he was counseling, see Master and Servant-Incompetency of Servant: North Dakota Adopts the Restatement’s “Scope of Employment” Test and Explores the Phenomenon of “Transference, ” 75 N.D. L. Rev. 137 (1999).

For Article: Section 1983 Actions in North Dakota: An Empirical Study of Agency Policies and Law Enforcement and Correctional Officers, see 84 N.D. L. Rev. 419 (2008).

32-12.1-05. Liability insurance policy coverage.

An insurance policy or insurance contract purchased by a political subdivision or a government self-insurance pool in which a political subdivision participates pursuant to this chapter may provide coverage for the types of liabilities established by this chapter and may provide such additional coverage as the governing body of the political subdivision determines to be appropriate. The insurer may not assert the defense of governmental immunity, but this chapter confers no right upon a claimant to sue an insurer directly. If a dispute exists concerning the amount or nature of the required insurance coverage, the dispute must be tried separately. The insurance coverage authorized by this chapter may be in addition to any insurance coverage purchased by a political subdivision pursuant to any other provision of law and if premium savings will result therefrom, any insurance policy purchased pursuant to this chapter or any other provision of law may be written for a period which exceeds one year.

Source:

S.L. 1977, ch. 303, § 5; 1985, ch. 317, § 62; 1987, ch. 406, § 3; 1987, ch. 407, § 1; 1989, ch. 412, § 2; 1991, ch. 301, § 26; 1995, ch. 329, § 9.

Notes to Decisions

Liability Insurance.

Under this section, the defense of governmental immunity is waived when a political subdivision purchases liability insurance coverage; thus, when a political subdivision has such insurance coverage the liability protections afforded under N.D.C.C. ch. 53-08 are inapplicable. Fastow v. Burleigh County Water Resource Dist., 415 N.W.2d 505, 1987 N.D. LEXIS 427 (N.D. 1987).

If a political subdivision has no liability insurance coverage, its exposure for liabilities is limited to $250,000 per person and $500,000 per occurrence. If, however, a political subdivision purchases insurance coverage in excess of those amounts, an injured plaintiff may receive judgment in the amount of the insurance coverage. Fastow v. Burleigh County Water Resource Dist., 415 N.W.2d 505, 1987 N.D. LEXIS 427 (N.D. 1987).

Recreational Use of Property.

Application of this section waives any governmental immunity defense of political subdivision when a political subdivision claims the liability protections of the recreational use statute. Hovland v. City of Grand Forks, 1997 ND 95, 563 N.W.2d 384, 1997 N.D. LEXIS 89 (N.D. 1997).

DECISIONS UNDER PRIOR LAW

Joinder of Insurer.

In action under former N.D.C.C. § 40-43-07 authorizing political subdivisions to carry liability insurance, insurer’s assertion of defense of governmental immunity made it imperative that existence of liability insurance be alleged in complaint; however, injured party could not sue insurer directly but had first to establish liability of insured; in absence of any “direct-action” statute and in view of policy’s “no action clause” providing that no action should lie against insurer until amount of insured’s obligation was finally determined, injured party could not join insurer as party defendant to action against insured and another. Shermoen v. Lindsay, 163 N.W.2d 738, 1968 N.D. LEXIS 93 (N.D. 1968).

32-12.1-06. Statement to commissioner. [Repealed]

Repealed by S.L. 1987, ch. 407, § 2.

32-12.1-07. Authorized insurance.

  1. The insurance authorized by this chapter may be provided by:
    1. Self-insurance, which may be funded by appropriations to establish or maintain reserves for self-insurance purposes.
    2. An insurance company authorized to do business in this state which the commissioner has determined to be responsible and financially sound, considering the extent of the coverage required.
    3. Any combination of the methods of obtaining insurance authorized in subdivisions a and b.
  2. This chapter does not prohibit a political subdivision from uniting with other political subdivisions in order to purchase liability insurance or to self-insure.

Source:

S.L. 1977, ch. 303, § 7; 1989, ch. 412, § 3; 1995, ch. 329, § 10.

32-12.1-08. Political subdivision risk funding.

  1. A political subdivision may provide funding from revenue derived from its general fund tax levy as determined by the governing body to be necessary for risk financing purposes.
  2. Any unobligated balance in a political subdivision insurance reserve fund must be transferred to the political subdivision’s general fund and the insurance reserve fund must be closed out by December 31, 2015. The general fund of the political subdivision may be used for risk financing purposes and the payment of claims against the political subdivision which have been settled or compromised, judgments rendered against the political subdivision, or costs incurred in the defense of claims.

Source:

S.L. 1977, ch. 303, § 8; 1981, ch. 352, § 1; 1983, ch. 606, § 37; 1983, ch. 608, § 10; 1987, ch. 232, § 2; 2001, ch. 510, § 2; 2015, ch. 439, § 34, eff January 1, 2015.

Effective Date.

The 2015 amendment of this section by section 34 of chapter 439, S.L. 2015 is effective for taxable years beginning after December 31, 2014.

32-12.1-09. Duties of insurance commissioner.

The commissioner shall be responsible for determining the specifications for the liability insurance covering the areas of risk as specified in this chapter. The commissioner shall require the insurance company to guarantee that its policy provides minimum coverages pursuant to required specifications. The commissioner may certify to political subdivisions obtaining liability insurance from an insurance company whether such company is responsible and financially sound considering the extent of coverage which the insurance company is offering.

Source:

S.L. 1977, ch. 303, § 9.

32-12.1-10. Statute of limitations.

An action brought under this chapter must be commenced within three years after the claim for relief has accrued.

Source:

S.L. 1977, ch. 303, § 10; 1985, ch. 82, § 75.

Notes to Decisions

Application.

This section specifies the maximum time in which an action may be brought against a political subdivision; it does not apply where a more restrictive statute of limitation is applicable. O'Fallon v. Pollard, 427 N.W.2d 809, 1988 N.D. LEXIS 188 (N.D. 1988).

If, as plaintiff argued, university participation in the North Dakota Insurance Reserve Fund constituted the purchase of insurance for purposes of waiving immunity based upon the provisions of this chapter, then it followed that the three-year statute of limitations was also applicable to her claim; it would stand the legislative intent on its head to conclude that the legislature intended the three-year statute of limitations to apply only to political subdivisions, which are not immune to suit, and not to the state and its agencies, which the legislature allowed to voluntarily waive their immunity by purchasing liability insurance pursuant to section 32-12.1-15. Olson v. University of N. Dakota, 488 N.W.2d 386, 1992 N.D. LEXIS 144 (N.D. 1992).

District court did not err in concluding that their tort claims against the city accrued in 1992 and in applying the three-year statute of limitations in N.D.C.C. § 32-12.1-10 to those claims; the statute specified the maximum time in which an action could be brought against a political subdivision. Hager v. City of Devils Lake, 2009 ND 180, 773 N.W.2d 420, 2009 N.D. LEXIS 188 (N.D. 2009).

Applying the provisions of N.D.C.C. §§ 1-02-05, 1-02-07 and 1-02-27, the trial court could not apply the three-year limitations period of N.D.C.C. § 32-12.1-10 to bar the lessees’ contract claims against the political subdivision, as the legislature intended that statute to apply only against tort claims against the state, which was separate from the political subdivision for liability purposes. Finstad v. Ransom-Sargent Water Users, Inc., 2011 ND 215, 812 N.W.2d 323, 2011 N.D. LEXIS 216 (N.D. 2011).

District court did not err in determining that the husband and wife's personal injury claims were precluded by N.D.C.C. § 32-12.1-10 where they had sued the park district, not the contractor, thus the three-year limitations period applied, the injuries accrued on the date the wife fell rollerblading, and the limitations period had expired by the time the couple had properly served the summons and complaint. Frith v. Park Dist. of the City of Fargo, 2016 ND 213, 886 N.W.2d 836, 2016 N.D. LEXIS 212 (N.D. 2016).

District court did not err in dismissing as untimely plaintiff’s claims relating to her son’s death. After speaking with an independent toxicologist on December 27, 2013, plaintiff was aware of facts sufficient to put her on notice of a potential claim, and she failed to sue defendants within three years of that date. Ayling v. Sens, 2019 ND 114, 926 N.W.2d 147, 2019 N.D. LEXIS 117 (N.D. 2019).

Statute of limitations barred plaintiffs’ tort claims when it sued governmental defendants in October 2016. An agent’s initial knowledge of material deficiencies in May 2012 and his subsequent knowledge of additional deficiencies as the job continued through its completion on August 15, 2012, should have led plaintiff to inquire whether the county knew of the material deficiencies for the whole project when it issued the bid documents. Lakeview Excavating, Inc. v. Dickey Cty., 2020 ND 67, 940 N.W.2d 657, 2020 N.D. LEXIS 63 (N.D. 2020).

Assault and False Imprisonment.

The two-year statute of limitation, under N.D.C.C. § 28-01-18, which specifically applies to assault and false imprisonment actions, falls within the three-year parameter for bringing actions against political subdivisions or sheriffs and constables under this section, and N.D.C.C. § 28-01-17, respectively. O'Fallon v. Pollard, 427 N.W.2d 809, 1988 N.D. LEXIS 188 (N.D. 1988).

Civil Actions Against Sheriffs.

An action against a sheriff and a county for conversion based on the seizure and removal of plaintiff’s belongings in execution of a judgment accrued when the sheriff seized plaintiff’s possessions and placed them with a moving and storage company. Lang v. Burleigh County Sheriff's Dep't, 496 N.W.2d 24, 1993 N.D. LEXIS 27 (N.D. 1993).

Federal Civil Rights Action.

This section does not provide the proper statute of limitations for 42 USCS § 1983 civil rights actions in North Dakota. Carpenter v. Williams County, 618 F. Supp. 1293, 1985 U.S. Dist. LEXIS 15484 (D.N.D. 1985).

Purpose.

The obvious purpose of this chapter is to limit exposure to potential liability. The reduced three-year period for commencing an action under the chapter furthers this purpose. In effect, the three-year statute of limitations is the legislatively imposed quid pro quo for the liability provided by the chapter. Olson v. University of N. Dakota, 488 N.W.2d 386, 1992 N.D. LEXIS 144 (N.D. 1992).

DECISIONS UNDER PRIOR LAW

Failure of City to Act.

Under former N.D.C.C. §§ 40-42-02 and 40-42-03 giving city sixty days to act on claim against it and imposing a six-month statute of limitation on actions on claims, claim was automatically rejected when not acted upon by city within sixty days and statute of limitation barred action commenced nineteen months thereafter; request of insurance representative and city attorney that further action be held in abeyance pending investigation did not waive requirements of statute of limitation. Aune v. Mandan, 167 N.W.2d 754, 1969 N.D. LEXIS 100 (N.D. 1969).

32-12.1-11. Judgment against political subdivision — Levy authority — Additional tax levy for insured subdivisions.

If a final judgment is obtained or a settlement is agreed for a claim against any political subdivision, except a school district, the governing body of the political subdivision may by resolution provide for the levy and collection of an annual tax not exceeding the limitation in section 57-15-28.1 upon the taxable valuation of property within the political subdivision for the payment of such judgment. This section also applies to a judgment obtained or a settlement agreed for a claim against the political subdivision by the state or any agency or instrumentality of the state.

Source:

S.L. 1977, ch. 303, § 11; 1983, ch. 606, § 38; 1983, ch. 608, § 11; 2015, ch. 439, § 35, eff January 1, 2015.

Effective Date.

The 2015 amendment of this section by section 35 of chapter 439, S.L. 2015 is effective for taxable years beginning after December 31, 2014.

32-12.1-12. Compromise of judgments against political subdivisions — Tax levy to pay reduced judgment — Tax limitations not applicable. [Repealed]

Source:

S.L. 1977, ch. 303, § 12; Repealed by 2015, ch. 439, § 104, eff January 1, 2015.

Effective Date.

The repeal of this section by section 104 of chapter 439, S.L. 2015 is effective for taxable years beginning after December 31, 2014.

32-12.1-13. Bonds may be issued to pay compromised amount — Regulations governing.

The compromised amount of a judgment agreed upon may be made payable in stated annual installments over a period not exceeding twenty-five years and at an annual rate of interest of not more than five percent. The governing body, by a resolution adopted by an affirmative vote of two-thirds of its members, may issue bonds payable serially and maturing annually, as the parties may agree, and in the amounts of the annual installments and interest determined by the compromise, in satisfaction and discharge of the judgment. Bonds issued under this section shall be delivered to the judgment creditor upon the release of the judgment and in consideration of the full satisfaction thereof. The bonds shall be executed in the name of the political subdivision by the executive officer and the auditor or fiscal officer thereof. Except as otherwise provided in this chapter, the bonds shall be in the form prescribed for political subdivision bonds which are payable from the levy of a general tax. Prior to the delivery of the bonds to the judgment creditor, the bonds shall be certified and recorded by the auditor or fiscal officer in the manner provided by the laws of this state for the certification and recording of general obligation bonds of political subdivisions.

Source:

S.L. 1977, ch. 303, § 13; 1985, ch. 374, § 1.

32-12.1-14. Levy of tax to pay principal and interest of bonds — Duty of county auditor. [Repealed]

Source:

S.L. 1977, ch. 303, § 14; Repealed by 2015, ch. 439, § 104, eff January 1, 2015.

Effective Date.

The repeal of this section by section 104 of chapter 439, S.L. 2015 is effective for taxable years beginning after December 31, 2014.

32-12.1-15. State agencies authorized to purchase insurance and participate in government self-insurance pools — Approval by insurance commissioner. [Repealed]

Repealed by S.L. 1995, ch. 329, § 14.

Note.

For present provisions, see § 32-12.2-06.

CHAPTER 32-12.2 Claims Against the State

32-12.2-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Claim” means any claim for money damages brought against the state or a state employee for an injury caused by the state or a state employee acting within the scope of the employee’s employment whether in the state or outside the state.
  2. “Injury” means personal injury, death, or property damage.
  3. “Occurrence” means an accident, including continuous or repeated exposure to a condition, which results in an injury.
  4. “Personal injury” includes bodily injury, mental injury, sickness, or disease sustained by a person and injury to a person’s rights or reputation.
  5. “Property damage” includes injury to or destruction of tangible or intangible property.
  6. “Scope of employment” means the state employee was acting on behalf of the state in the performance of duties or tasks of the employee’s office or employment lawfully assigned to the employee by competent authority or law.
  7. “State” includes an agency, authority, board, body, branch, bureau, commission, committee, council, department, division, industry, institution, instrumentality, and office of the state.
  8. “State employee” means every present or former officer or employee of the state or any person acting on behalf of the state in an official capacity, temporarily or permanently, with or without compensation. The term does not include an independent contractor.
  9. “State institution” means the state hospital, the life skills and transition center, the state penitentiary, the Missouri River correctional center, the North Dakota youth correctional center, the North Dakota vision services — school for the blind, the school for the deaf, and similar facilities providing care, custody, or treatment for individuals.

Source:

S.L. 1995, ch. 329, § 11; 1997, ch. 286, § 1; 2001, ch. 257, § 6; 2005, ch. 300, § 1; 2013, ch. 226, § 1.

Effective Date.

The 2013 amendment of this section by section 1 of chapter 226, S.L. 2013 became effective August 1, 2013.

Note.

S.L. 2013, chapter 226, § 1, codified as N.D.C.C. § 25-04-01.1, provides for the substitution of “life skills and transition center” for “developmental center at westwood park, Grafton” or “developmental center” or any derivatives of those terms wherever they appear in the North Dakota Century Code.

Notes to Decisions

Grossly Negligent or Intentional Misconduct.

Summary judgment dismissing the daughters’ wrongful death and negligence claims was affirmed because the Texas defendants, employees of the Texas Department of Criminal Justice, were immune from suit to the same extent the State of North Dakota would grant immunity to its employees under North Dakota law; the Texas defendants were immune from personal liability for negligent acts committed within the scope of employment but would not be immune for acts of gross negligence or intentional misconduct, and the daughters did not allege the Texas defendants’ conduct was grossly negligent or intentional misconduct, thus as a matter of law, the Texas defendants were immune under Texas law. Texas law granted a broader immunity to state employees, only allowing suits resulting from motor vehicle accidents occurring within the scope of employment. Hansen v. Scott, 2004 ND 179, 687 N.W.2d 247, 2004 N.D. LEXIS 309 (N.D. 2004).

State Tort Liability.

Upon remand of the case to the trial court, the trial court under the authority of N.D.C.C. § 1-02-39 could consider the factors listed in that statute to determine the appropriate limitations period to be applied to the lessees’ contract claims against the political subdivision. The trial court needed to do so because it applied the wrong limitations period to determine that the contract claims were barred against the political subdivision, especially given the legislature’s intent under N.D.C.C. § 32-12.1-01 that claims against political subdivisions be treated separately from claims against the state, that tort claims as recognized by the factors set forth in N.D.C.C. § 32-12.1-02, that state tort liability was separate from political subdivision liability as contemplated under N.D.C.C. § 32-12.2-01, and that the legislature had provided a “catch-all” limitations provision for actions against only the state and its employees under N.D.C.C. § 28-01-22.1. Finstad v. Ransom-Sargent Water Users, Inc., 2011 ND 215, 812 N.W.2d 323, 2011 N.D. LEXIS 216 (N.D. 2011).

DECISIONS UNDER PRIOR LAW

Misconduct.

Under former N.D.C.C. § 32-12.1-15, when a public employee acted within the scope of his or her employment, but behaved in a reckless, grossly negligent, willful or wanton manner, the employee could be personally liable. Burr v. Kulas, 1997 ND 98, 564 N.W.2d 631, 1997 N.D. LEXIS 114 (N.D. 1997).

Collateral References.

Tort liability of public schools and institutions of higher learning for accident involving motor vehicle operated by student, 85 A.L.R.5th 301.

Liability of municipality or other governmental unit for failure to provide police protection from crime, 90 A.L.R.5th 273.

Liability of State or Local Governmental Entity for Injury Sustained or Caused by Persons Sledding, Tobogganing, Coasting, or Otherwise Sliding on Snow on Government Land, 29 A.L.R.6th 369.

Liability of United States for failure to warn of danger or hazard not directly created by act or omission of federal government and not in national parks as affected by “discretionary function or duty” exception to Federal Tort Claims Act, 169 A.L.R. Fed. 421.

Liability of United States for failure to warn of danger or hazard resulting from governmental act or omission as affected by “discretionary function or duty” exception to Federal Tort Claims Act (28 U.S.C.A. § 2680(a)), 170 A.L.R. Fed. 365.

Liability of United States for failure to warn local police or individuals of discharge, release, or escape of person who is deemed dangerous to public as affected by “discretionary act or duty” exception to Federal Tort Claims Act, 171 A.L.R. Fed. 655.

Claims arising from conduct of governmental employer in administering or failing to administer medical care as within discretionary function exception of Federal Tort Claims Act (28 U.S.C.A. § 2680(a)), 172 A.L.R. Fed. 407.

Liability of United States, under Federal Tort Claims Act (28 U.S.C.A. §§ 1346, 2680), for damages caused by ingestion or administration of government-approved drugs, vaccines, and medications, 173 A.L.R. Fed. 431.

Construction and application of Federal Tort Claims Act (FTCA) exception in 28 U.S.C.A. § 3680(c), concerning claims arising in respect of assessment or collection of any tax or customs duty, or detention of goods or merchandise by any officer of customs or excise or any other law-enforcement officer, 173 A.L.R. Fed. 465.

32-12.2-02. Liability of the state — Limitations — Statute of limitations. [Effective through June 30, 2022]

  1. The state may only be held liable for money damages for an injury proximately caused by the negligence or wrongful act or omission of a state employee acting within the employee’s scope of employment under circumstances in which the employee would be personally liable to a claimant in accordance with the laws of this state, or an injury caused from some condition or use of tangible property under circumstances in which the state, if a private person, would be liable to the claimant. No claim may be brought against the state or a state employee acting within the employee’s scope of employment except a claim authorized under this chapter or otherwise authorized by the legislative assembly. The enactment of a law, rule, or regulation to protect any person’s health, safety, property, or welfare does not create a duty of care on the part of the state, its employees, or its agents, if that duty would not otherwise exist.
  2. The liability of the state under this chapter is limited to a total of two hundred fifty thousand dollars per person and one million dollars for any number of claims arising from any single occurrence. The state may not be held liable, or be ordered to indemnify a state employee held liable, for punitive or exemplary damages. Any amount of a judgment against the state in excess of the one million dollar limit imposed under this subsection may be paid only if the legislative assembly adopts an appropriation authorizing payment of all or a portion of that amount. A claimant may present proof of the judgment to the director of the office of management and budget who shall include within the proposed budget for the office of management and budget a request for payment for the portion of the judgment in excess of the limit under this section at the next regular session of the legislative assembly after the judgment is rendered.
  3. Neither the state nor a state employee may be held liable under this chapter for any of the following claims:
    1. A claim based upon an act or omission of a state employee exercising due care in the execution of a valid or invalid statute or rule.
    2. A claim based upon a decision to exercise or perform or a failure to exercise or perform a discretionary function or duty on the part of the state or its employees, regardless of whether the discretion involved is abused or whether the statute, order, rule, or resolution under which the discretionary function or duty is performed is valid or invalid. Discretionary acts include acts, errors, or omissions in the design of any public project but do not include the drafting of plans and specifications that are provided to a contractor to construct a public project.
    3. A claim resulting from the decision to undertake or the refusal to undertake any legislative or quasi-legislative act, including the decision to adopt or the refusal to adopt any statute, order, rule, or resolution.
    4. A claim resulting from a decision to undertake or a refusal to undertake any judicial or quasi-judicial act, including a decision to grant, to grant with conditions, to refuse to grant, or to revoke any license, permit, order, or other administrative approval or denial.
    5. A claim relating to injury directly or indirectly caused by a person who is not employed by the state.
    6. A claim relating to injury directly or indirectly caused by the performance or nonperformance of a public duty, including:
      1. Inspecting, licensing, approving, mitigating, warning, abating, or failing to so act regarding compliance with or the violation of any law, rule, regulation, or any condition affecting health or safety.
      2. Enforcing, monitoring, or failing to enforce or monitor conditions of sentencing, parole, probation, or juvenile supervision.
      3. Providing or failing to provide law enforcement services in the ordinary course of a state’s law enforcement operations.
    7. “Public duty” does not include action of the state or a state employee under circumstances in which a special relationship can be established between the state and the injured party. A special relationship is demonstrated if all of the following elements exist:
      1. Direct contact between the state and the injured party.
      2. An assumption by the state, by means of promises or actions, of an affirmative duty to act on behalf of the party who allegedly was injured.
      3. Knowledge on the part of the state that inaction of the state could lead to harm.
      4. The injured party’s justifiable reliance on the state’s affirmative undertaking, occurrence of the injury while the injured party was under the direct control of the state, or the state action increases the risk of harm.
    8. A claim resulting from the assessment and collection of taxes.
    9. A claim resulting from snow or ice conditions, water, or debris on a highway or on a public sidewalk that does not abut a state-owned building or parking lot, except when the condition is affirmatively caused by the negligent act of a state employee.
    10. A claim resulting from any injury caused by a wild animal in its natural state.
    11. A claim resulting from the condition of unimproved real property owned or leased by the state.
    12. A claim resulting from the loss of benefits or compensation due under a program of public assistance.
    13. A claim resulting from the reasonable care and treatment, or lack of care and treatment, of a person at a state institution where reasonable use of available appropriations has been made to provide care.
    14. A claim resulting from damage to the property of a patient or inmate of a state institution.
    15. A claim resulting from any injury to a resident or an inmate of a state institution if the injury is caused by another resident or inmate of that institution.
    16. A claim resulting from environmental contamination, except to the extent that federal environmental law permits the claim.
    17. A claim resulting from a natural disaster, an act of God, a military action, or an act or omission taken as part of a disaster relief effort.
    18. A claim for damage to property owned by the state.
    19. A claim for liability assumed under contract, except this exclusion does not apply to liability arising from a state employee’s operation of a rental vehicle if the loss is not covered by the state employee’s personal insurance or by the vehicle rental company.
  4. An action brought under this chapter must be commenced within the period provided in section 28-01-22.1.
  5. This chapter does not create or allow any claim that does not exist at common law or has not otherwise been created by law as of April 22, 1995.

Source:

S.L. 1995, ch. 329, § 11; 1997, ch. 286, § 2; 1999, ch. 303, § 4; 2005, ch. 299, § 3; 2009, ch. 15, § 15.

Effective Date.

The 2009 amendment of this section by section 15 of chapter 15, S.L. 2009 became effective July 1, 2009.

Notes to Decisions

Applicability.

In a case in which a resident physician sued a university and a university official after the resident was dismissed from the university medical school’s internal medicine residency program for incompetence in the area of professionalism, the official was immune from liability in his individual capacity under N.D.C.C. §§ 32-12.2-02(3)(b) and (d) and 32-12.2-03(3). Resident did not dispute that the official was acting within the scope of his employment as the director of the residency program at the medical school. Abdullah v. State, 2009 ND 148, 771 N.W.2d 246, 2009 N.D. LEXIS 157 (N.D. 2009).

Damage to Property of Inmate.

Inmate failed to state a claim under Rule 12(b) alleging state antitrust violations under N.D.C.C. § 51-08.1-08, requesting damages and equitable relief, because this section precludes the State from liability for inmate claims of injury or threatened injury to property; in addition, inmate could not recover equitable relief under N.D.C.C. § 51-08.1-08 as a matter of law. Burke v. North Dakota Dep't of Corrections & Rehabilitation, 2000 ND 85, 609 N.W.2d 729, 2000 N.D. LEXIS 87 (N.D. 2000).

Discretionary Functions.

Acts of director of Department of Human Services were discretionary acts under subsection (3)(b) of this section and were therefore immune from suit. Perry Ctr. v. Heitkamp, 1998 ND 78, 576 N.W.2d 505, 1998 N.D. LEXIS 78 (N.D. 1998).

Erroneous Driver’s License Suspension.

Driver had no cause of action arising from an erroneous license suspension; clerks of court had no authority under N.D.C.C. tit. 39 to suspend licenses, quasi-judicial immunity protected the Director of the North Dakota Department of Transportation pursuant to N.D.C.C. § 32-12.2-02(3)(d), and no private right of action existed against the State under N.D. Const. art. I., § 9 for acts not described in N.D.C.C. § 32-12.2-02(1). Kouba v. State, 2004 ND 186, 687 N.W.2d 466, 2004 N.D. LEXIS 321 (N.D. 2004).

Out-of-State Government Employees.

Summary judgment dismissing the daughters’ wrongful death and negligence claims was affirmed because the Texas defendants, employees of the Texas Department of Criminal Justice, were immune from suit to the same extent the State of North Dakota would grant immunity to its employees under North Dakota law; the Texas defendants were immune from personal liability for negligent acts committed within the scope of employment but would not be immune for acts of gross negligence or intentional misconduct, and the daughters did not allege the Texas defendants’ conduct was grossly negligent or intentional misconduct, thus as a matter of law, the Texas defendants were immune under Texas law. Texas law granted a broader immunity to state employees, only allowing suits resulting from motor vehicle accidents occurring within the scope of employment. Hansen v. Scott, 2004 ND 179, 687 N.W.2d 247, 2004 N.D. LEXIS 309 (N.D. 2004).

Public Duty Immunity.

State was immune to liability for a car accident under N.D.C.C. § 32-12.2-02(3)(f) where N.D.C.C. § 24-03-02 imposed a duty on the State and the Department of Transportation to maintain the highway where the accident occurred and keep it in good and safe condition for general public use, and that duty was unique to the State. Schroeder v. State, 2020 ND 167, 946 N.W.2d 718, 2020 N.D. LEXIS 163 (N.D. 2020).

Snow or Ice Conditions.

In personal injury case against a university arising out of a student’s fall on ice which had accumulated on a sidewalk outside a university-owned apartment building, summary judgment in favor of the university was affirmed, where the student failed to present evidence raising an inference that the university had prior knowledge that water was pooling and freezing on the sidewalk, causing a hazardous condition. Skjervem v. Minot State Univ., 2003 ND 52, 658 N.W.2d 750, 2003 N.D. LEXIS 60 (N.D. 2003).

Mere knowledge that melting snow may run onto a sidewalk and freeze is not enough to expose a landowner, who had cleared the snow from the sidewalk, to liability; therefore, summary judgment was properly granted in favor of the State in a negligence action based on a slip and fall on an icy sidewalk because the State’s snow removal efforts at a state university did not expose it to liability since no dangerous condition was created. Fast v. State, 2004 ND 111, 680 N.W.2d 265, 2004 N.D. LEXIS 212 (N.D. 2004).

Snow and ice immunity set forth in N.D.C.C. § 32-12.2-02(3)(i) protected the State from liability for a car accident where although evidence showed that the snow or ice condition along the guardrail was caused by the State’s actions plowing the road, it also did not show that the State’s employees’ actions were negligent. There was no evidence that the Department of Transportation employees did not comply with the Department’s snow removal policies, and the failure to remove the snowbank was not an affirmative act that caused the condition. Schroeder v. State, 2020 ND 167, 946 N.W.2d 718, 2020 N.D. LEXIS 163 (N.D. 2020).

32-12.2-02. Liability of the state — Limitations — Statute of limitations. [Effective July 1, 2022]

  1. The state may only be held liable for money damages for an injury proximately caused by the negligence or wrongful act or omission of a state employee acting within the employee’s scope of employment under circumstances in which the employee would be personally liable to a claimant in accordance with the laws of this state, or an injury caused from some condition or use of tangible property under circumstances in which the state, if a private person, would be liable to the claimant. No claim may be brought against the state or a state employee acting within the employee’s scope of employment except a claim authorized under this chapter or otherwise authorized by the legislative assembly. The enactment of a law, rule, or regulation to protect any person’s health, safety, property, or welfare does not create a duty of care on the part of the state, its employees, or its agents, if that duty would not otherwise exist.
  2. The liability of the state under this chapter is limited to a total of three hundred seventy-five thousand dollars per person and one million dollars for any number of claims arising from any single occurrence. The state may not be held liable, or be ordered to indemnify a state employee held liable, for punitive or exemplary damages. Any amount of a judgment against the state in excess of the one million dollar limit imposed under this subsection may be paid only if the legislative assembly adopts an appropriation authorizing payment of all or a portion of that amount. A claimant may present proof of the judgment to the director of the office of management and budget who shall include within the proposed budget for the office of management and budget a request for payment for the portion of the judgment in excess of the limit under this section at the next regular session of the legislative assembly after the judgment is rendered. The liability limits under this subsection must be adjusted annually as follows:
    1. On July 1, 2023, a total of four hundred six thousand two hundred and fifty dollars per person and one million six hundred twenty-five thousand dollars for any single occurrence.
    2. On July 1, 2024, a total of four hundred thirty-seven thousand five hundred dollars per person and one million seven hundred fifty thousand dollars for any single occurrence.
    3. On July 1, 2025, a total of four hundred sixty-eight thousand seven hundred fifty dollars per person and one million eight hundred seventy-five thousand dollars per occurrence.
    4. On July 1, 2026, a total of five hundred thousand dollars per person and two million dollars per occurrence.
  3. Neither the state nor a state employee may be held liable under this chapter for any of the following claims:
    1. A claim based upon an act or omission of a state employee exercising due care in the execution of a valid or invalid statute or rule.
    2. A claim based upon a decision to exercise or perform or a failure to exercise or perform a discretionary function or duty on the part of the state or its employees, regardless of whether the discretion involved is abused or whether the statute, order, rule, or resolution under which the discretionary function or duty is performed is valid or invalid. Discretionary acts include acts, errors, or omissions in the design of any public project but do not include the drafting of plans and specifications that are provided to a contractor to construct a public project.
    3. A claim resulting from the decision to undertake or the refusal to undertake any legislative or quasi-legislative act, including the decision to adopt or the refusal to adopt any statute, order, rule, or resolution.
    4. A claim resulting from a decision to undertake or a refusal to undertake any judicial or quasi-judicial act, including a decision to grant, to grant with conditions, to refuse to grant, or to revoke any license, permit, order, or other administrative approval or denial.
    5. A claim relating to injury directly or indirectly caused by a person who is not employed by the state.
    6. A claim relating to injury directly or indirectly caused by the performance or nonperformance of a public duty, including:
      1. Inspecting, licensing, approving, mitigating, warning, abating, or failing to so act regarding compliance with or the violation of any law, rule, regulation, or any condition affecting health or safety.
      2. Enforcing, monitoring, or failing to enforce or monitor conditions of sentencing, parole, probation, or juvenile supervision.
      3. Providing or failing to provide law enforcement services in the ordinary course of a state’s law enforcement operations.
    7. “Public duty” does not include action of the state or a state employee under circumstances in which a special relationship can be established between the state and the injured party. A special relationship is demonstrated if all of the following elements exist:
      1. Direct contact between the state and the injured party.
      2. An assumption by the state, by means of promises or actions, of an affirmative duty to act on behalf of the party who allegedly was injured.
      3. Knowledge on the part of the state that inaction of the state could lead to harm.
      4. The injured party’s justifiable reliance on the state’s affirmative undertaking, occurrence of the injury while the injured party was under the direct control of the state, or the state action increases the risk of harm.
    8. A claim resulting from the assessment and collection of taxes.
    9. A claim resulting from snow or ice conditions, water, or debris on a highway or on a public sidewalk that does not abut a state-owned building or parking lot, except when the condition is affirmatively caused by the negligent act of a state employee.
    10. A claim resulting from any injury caused by a wild animal in its natural state.
    11. A claim resulting from the condition of unimproved real property owned or leased by the state.
    12. A claim resulting from the loss of benefits or compensation due under a program of public assistance.
    13. A claim resulting from the reasonable care and treatment, or lack of care and treatment, of a person at a state institution where reasonable use of available appropriations has been made to provide care.
    14. A claim resulting from damage to the property of a patient or inmate of a state institution.
    15. A claim resulting from any injury to a resident or an inmate of a state institution if the injury is caused by another resident or inmate of that institution.
    16. A claim resulting from environmental contamination, except to the extent that federal environmental law permits the claim.
    17. A claim resulting from a natural disaster, an act of God, a military action, or an act or omission taken as part of a disaster relief effort.
    18. A claim for damage to property owned by the state.
    19. A claim for liability assumed under contract, except this exclusion does not apply to liability arising from a state employee’s operation of a rental vehicle if the loss is not covered by the state employee’s personal insurance or by the vehicle rental company.
  4. An action brought under this chapter must be commenced within the period provided in section 28-01-22.1.
  5. This chapter does not create or allow any claim that does not exist at common law or has not otherwise been created by law as of April 22, 1995.

Source:

S.L. 1995, ch. 329, § 11; 1997, ch. 286, § 2; 1999, ch. 303, § 4; 2005, ch. 299, § 3; 2009, ch. 15, § 15; 2021, ch. 258, § 2, eff July 1, 2022.

32-12.2-02. Liability of the state — Limitations — Statute of limitations. [Effective August 1, 2027]

  1. The state may only be held liable for money damages for an injury proximately caused by the negligence or wrongful act or omission of a state employee acting within the employee’s scope of employment under circumstances in which the employee would be personally liable to a claimant in accordance with the laws of this state, or an injury caused from some condition or use of tangible property under circumstances in which the state, if a private person, would be liable to the claimant. No claim may be brought against the state or a state employee acting within the employee’s scope of employment except a claim authorized under this chapter or otherwise authorized by the legislative assembly. The enactment of a law, rule, or regulation to protect any person’s health, safety, property, or welfare does not create a duty of care on the part of the state, its employees, or its agents, if that duty would not otherwise exist.
  2. The liability of the state under this chapter is limited to a total of two hundred fifty thousand dollars per person and one million dollars for any number of claims arising from any single occurrence. The state may not be held liable, or be ordered to indemnify a state employee held liable, for punitive or exemplary damages. Any amount of a judgment against the state in excess of the one million dollar limit imposed under this subsection may be paid only if the legislative assembly adopts an appropriation authorizing payment of all or a portion of that amount. A claimant may present proof of the judgment to the director of the office of management and budget who shall include within the proposed budget for the office of management and budget a request for payment for the portion of the judgment in excess of the limit under this section at the next regular session of the legislative assembly after the judgment is rendered.
  3. Neither the state nor a state employee may be held liable under this chapter for any of the following claims:
    1. A claim based upon an act or omission of a state employee exercising due care in the execution of a valid or invalid statute or rule.
    2. A claim based upon a decision to exercise or perform or a failure to exercise or perform a discretionary function or duty on the part of the state or its employees, regardless of whether the discretion involved is abused or whether the statute, order, rule, or resolution under which the discretionary function or duty is performed is valid or invalid. Discretionary acts include acts, errors, or omissions in the design of any public project but do not include the drafting of plans and specifications that are provided to a contractor to construct a public project.
    3. A claim resulting from the decision to undertake or the refusal to undertake any legislative or quasi-legislative act, including the decision to adopt or the refusal to adopt any statute, order, rule, or resolution.
    4. A claim resulting from a decision to undertake or a refusal to undertake any judicial or quasi-judicial act, including a decision to grant, to grant with conditions, to refuse to grant, or to revoke any license, permit, order, or other administrative approval or denial.
    5. A claim relating to injury directly or indirectly caused by a person who is not employed by the state.
    6. A claim relating to injury directly or indirectly caused by the performance or nonperformance of a public duty, including:
      1. Inspecting, licensing, approving, mitigating, warning, abating, or failing to so act regarding compliance with or the violation of any law, rule, regulation, or any condition affecting health or safety.
      2. Enforcing, monitoring, or failing to enforce or monitor conditions of sentencing, parole, probation, or juvenile supervision.
      3. Providing or failing to provide law enforcement services in the ordinary course of a state’s law enforcement operations.
    7. “Public duty” does not include action of the state or a state employee under circumstances in which a special relationship can be established between the state and the injured party. A special relationship is demonstrated if all of the following elements exist:
      1. Direct contact between the state and the injured party.
      2. An assumption by the state, by means of promises or actions, of an affirmative duty to act on behalf of the party who allegedly was injured.
      3. Knowledge on the part of the state that inaction of the state could lead to harm.
      4. The injured party’s justifiable reliance on the state’s affirmative undertaking, occurrence of the injury while the injured party was under the direct control of the state, or the state action increases the risk of harm.
    8. A claim resulting from the assessment and collection of taxes.
    9. A claim resulting from snow or ice conditions, water, or debris on a highway or on a public sidewalk that does not abut a state-owned building or parking lot, except when the condition is affirmatively caused by the negligent act of a state employee.
    10. A claim resulting from any injury caused by a wild animal in its natural state.
    11. A claim resulting from the condition of unimproved real property owned or leased by the state.
    12. A claim resulting from the loss of benefits or compensation due under a program of public assistance.
    13. A claim resulting from the reasonable care and treatment, or lack of care and treatment, of a person at a state institution where reasonable use of available appropriations has been made to provide care.
    14. A claim resulting from damage to the property of a patient or inmate of a state institution.
    15. A claim resulting from any injury to a resident or an inmate of a state institution if the injury is caused by another resident or inmate of that institution.
    16. A claim resulting from environmental contamination, except to the extent that federal environmental law permits the claim.
    17. A claim resulting from a natural disaster, an act of God, a military action, or an act or omission taken as part of a disaster relief effort.
    18. A claim for damage to property owned by the state.
    19. A claim for liability assumed under contract, except this exclusion does not apply to liability arising from a state employee’s operation of a rental vehicle if the loss is not covered by the state employee’s personal insurance or by the vehicle rental company.
  4. An action brought under this chapter must be commenced within the period provided in section 28-01-22.1.
  5. This chapter does not create or allow any claim that does not exist at common law or has not otherwise been created by law as of April 22, 1995.

Source:

S.L. 1995, ch. 329, § 11; 1997, ch. 286, § 2; 1999, ch. 303, § 4; 2005, ch. 299, § 3; 2009, ch. 15, § 15.

32-12.2-03. State to be named in action — Personal liability and defense of employees — Indemnification of claims and final judgments.

  1. An action for an injury proximately caused by the alleged negligence, wrongful act, or omission of a state employee occurring within the scope of the employee’s employment must be brought against the state.
  2. A state employee is not personally liable for money damages for an injury when the injury is proximately caused by the negligence, wrongful act, or omission of the employee acting within the scope of employment.
  3. A state employee may not be held liable in the employee’s personal capacity for acts or omissions of the employee occurring within the scope of the employee’s employment. A state employee may be personally liable for money damages for an injury when the injury is proximately caused by the negligence, wrongful act, or omission of the employee acting outside the scope of the employee’s employment. The plaintiff in such an action bears the burden of proof to show by clear and convincing evidence that the employee was acting outside the scope of the employee’s employment. The extent to which an employee may be personally liable under this section and whether the employee was acting within the scope of employment must be specifically stated in a final judgment.
  4. Except for claims or judgments for punitive damages, the state shall indemnify and save harmless a state employee for any claim, whether groundless or not, and final judgment for any act or omission occurring within the scope of employment of the employee if the employee provides complete disclosure and cooperation in the defense of the claim or demand and if the employee has given written notice of the claim or demand to the head of the state entity that employs the state employee and to the attorney general within ten days after being served with a summons, complaint, or other legal pleading asserting that claim or demand against the state employee.
  5. A judgment in a claim against the state is a complete bar to any claim by the claimant, resulting from the same injury, against the employee whose act or omission gave rise to the claim.
  6. The state shall defend any state employee in connection with any civil claim or demand, whether groundless or otherwise, arising out of an alleged act or omission occurring within the scope of the employee’s employment if the employee provides complete disclosure and cooperation in the defense of the claim or demand and if the employee requests such defense in writing within ten days after being served with a summons, complaint, or other legal pleading asserting a cause of action against the state employee arising out of a civil claim or demand. The request for defense must be in writing and provided to the head of the state entity that employs the state employee and the attorney general. The head of the state entity that employs the state employee shall advise the attorney general as to whether that person deems the employee’s actions that are the subject of the action to have been within the scope of the employee’s employment. The determination of whether a state employee was acting within the scope of employment must be made by the attorney general. If the attorney general determines that the employee was acting within the scope of the employee’s employment, the state shall provide the employee with a defense by or under the control of the attorney general or the attorney general’s appointee. This section is not a waiver, limitation, or modification of any immunity or other defenses of the state or any of its employees, nor does it create any causes of action against the state or any of its employees.
  7. For any claim brought under this chapter, a state employee may choose to hire the employee’s own separate defense counsel to represent the state employee in the litigation. If the state employee chooses to hire separate defense counsel, subsections 4 and 6 do not apply to the state employee in that litigation and the state will not indemnify, save harmless, or defend the state employee nor pay for the state employee’s defense or any judgment against the state employee.

Source:

S.L. 1995, ch. 329, § 11; 1997, ch. 286, § 3.

Notes to Decisions

Application.

Father’s negligence claim against a social worker was determined by a state employee’s liability under this section; there was no evidentiary dispute that the social worker was acting within the scope of her employment, so that she was immune from suit. Lawrence v. Roberdeau, 2003 ND 124, 665 N.W.2d 719, 2003 N.D. LEXIS 135 (N.D. 2003).

In a case in which a resident physician sued a university and a university official after the resident was dismissed from the university medical school’s internal medicine residency program for incompetence in the area of professionalism, the official was immune from liability in his individual capacity under N.D.C.C. §§ 32-12.2-02(3)(b) and (d) and 32-12.2-03(3). Resident did not dispute that the official was acting within the scope of his employment as the director of the residency program at the medical school. Abdullah v. State, 2009 ND 148, 771 N.W.2d 246, 2009 N.D. LEXIS 157 (N.D. 2009).

Service of Process.

Action against various county and state officials in their official capacities was properly dismissed based on insufficient service of process where an arrestee served the officials by mail; NDRCivP 4(d)(2) required personal delivery. Sanderson v. Walsh County, 2006 ND 83, 712 N.W.2d 842, 2006 N.D. LEXIS 88 (N.D. 2006).

32-12.2-04. Notice required — Payment of claims.

  1. A person bringing a claim against the state or a state employee for an injury shall present to the director of the office of management and budget within one hundred eighty days after the alleged injury is discovered or reasonably should have been discovered a written notice stating the time, place, and circumstances of the injury, the names of any state employees known to be involved, and the amount of compensation or other relief demanded. The time for giving the notice does not include the time during which a person injured is incapacitated by the injury from giving the notice. If the claim is one for death, the notice may be presented by the personal representative, surviving spouse, or next of kin within one year after the alleged injury resulting in the death.
  2. After receipt of notice of a claim, the director of the office of management and budget shall, in a timely manner, notify the head of the state entity involved, the attorney general, and any insurer or self-insurance pool providing coverage for that state entity. For claims over ten thousand dollars, the director, in consultation with the head of the state entity involved and the attorney general, may settle claims covered by the state risk management fund if the claim is made in writing and settlement is approved by the attorney general. The director of the office of management and budget may independently settle any claim covered by the state risk management fund if the claim is made in writing and the settlement is for not more than ten thousand dollars.
  3. A claim shall be paid out of the risk management fund unless that claim is covered by insurance or participation in a government self-insurance pool. All necessary loss adjustment expenses must be included as a component of the claim and be paid out of the fund. Loss adjustment expenses include investigation costs and attorney’s fees associated with a claim.
  4. The acceptance by the claimant of a settlement is final and conclusive on the claimant and constitutes a complete release of any claim against the state and the state employee whose act or omission gave rise to the claim.
  5. A person bringing a legal action against the state or a state employee for a claim shall deliver a copy of the summons, complaint, or other legal pleading in which the claim is first asserted in the action to the director of the office of management and budget at the time the summons, complaint, or other legal pleading is served in the action. This provision is in addition to any applicable rule of civil procedure.

Source:

S.L. 1995, ch. 329, § 11; 1997, ch. 286, § 4; 2005, ch. 300, § 2.

Notes to Decisions

Construction.

By distinguishing between a “claim” and a “legal action,” the legislature intended to require a claimant to present a notice of a claim regardless of whether a legal action is filed. Cooke v. University of N.D., 1999 ND 238, 603 N.W.2d 504, 1999 N.D. LEXIS 252 (N.D. 1999).

Exhaustion of Remedies.

This section’s notice of claim requirement is consistent with exhaustion of remedies theory in that a party must present the requisite notice under the section and pursue available administrative remedies prior to initiating a lawsuit. Cooke v. University of N.D., 1999 ND 238, 603 N.W.2d 504, 1999 N.D. LEXIS 252 (N.D. 1999).

Failure to Present Notice.

In wrongful employment termination action filed by a state university student against university employees administering the Veterans Upward Bound program, the trial court properly dismissed the claim based on the student’s failure to serve a written notice of claim on the defendants. Earnest v. Garcia, 1999 ND 196, 601 N.W.2d 260, 1999 N.D. LEXIS 209 (N.D. 1999).

Where the plaintiff failed to present notice of his tort claim to the office of management and budget within the allotted time his claim was barred. Dimond v. State, 1999 ND 228, 603 N.W.2d 66, 1999 N.D. LEXIS 242 (N.D. 1999).

Where the plaintiff filed a grievance for non-promotion after another person had been advanced to the position she sought, the outcome of the administrative process could not be considered the cause of her alleged injury for purposes of the 180-day notice requirement, and her failure to comply with the notice requirement of this section within 180 days of the discovery of her alleged injury arising out of discriminatory treatment deprived the district court of subject matter jurisdiction. Cooke v. University of N.D., 1999 ND 238, 603 N.W.2d 504, 1999 N.D. LEXIS 252 (N.D. 1999).

Trial court lacked subject matter jurisdiction and erred in refusing to grant State’s motion to dismiss where plaintiff failed to present a claim in compliance with this section for the money damages she sought as a result of her alleged wrongful termination as an addiction counselor in violation of the North Dakota Human Rights Act. State v. Haskell, 2001 ND 14, 621 N.W.2d 358, 2001 N.D. LEXIS 18 (N.D. 2001).

Trial court did not err in dismissing an action against the State and two highway patrolmen for failure to file a timely notice of claim with the director of the Office of Management and Budget where plaintiffs’ complaint was dated prior to the expiration of the 180 day period demonstrating that plaintiffs had ample time to comply with the notification requirement. Kautzman v. McDonald, 2001 ND 20, 621 N.W.2d 871, 2001 N.D. LEXIS 21 (N.D. 2001).

The failure of the parents of an injured person “incapacitated by the injury from giving the notice” to present to OMB a notice of claim within 180 days of discovery of the injury under this section does not preclude the injured person from suing the State. State v. Paulson, 2001 ND 82, 625 N.W.2d 528, 2001 N.D. LEXIS 88 (N.D. 2001).

Trial court properly dismissed an employee’s claims for retaliatory discharge and defamation against the North Dakota Council on the Arts, where the employee failed to give required notice under this section. Ghorbanni v. N.D. Council on the Arts, 2002 ND 22, 639 N.W.2d 507, 2002 N.D. LEXIS 25 (N.D. 2002).

Public employee’s failure to file his claim for reimbursement for higher insurance premiums when less expensive insurance was available within 180 days after his alleged injury was discovered or reasonably should have been discovered rendered his lawsuit against the state untimely. Moen v. State, 2003 ND 17, 656 N.W.2d 671, 2003 N.D. LEXIS 18 (N.D. 2003).

Trial court did not err in dismissing a state university professor’s suit against the university because, inter alia, he failed to exhaust his internal administrative remedies and failed to file timely notice with the state; the notice stated that the basis of his claim was three letters, the first of which was dated October 10, 2001. Accordingly, the time period in which the statute required a claim to have been filed would have ended, at the latest, on April 10, 2002 and the professor filed his notice in September of 2002. Ungar v. N.D. State Univ., 2006 ND 185, 721 N.W.2d 16, 2006 N.D. LEXIS 187 (N.D. 2006).

In a case in which plaintiff sued the State and a state employee for statements made by the state employee at a legislative interim workers’ compensation review committee hearing, the trial court properly held that it lacked subject matter jurisdiction and that the state employee was not properly served. Voigt v. State, 2008 ND 236, 759 N.W.2d 530, 2008 N.D. LEXIS 237 (N.D. 2008).

District court erred in ordering an agent of the Bureau of Criminal Investigations and the Attorney General to pay compensatory remedial contempt sanctions to the purported owner of a seized payloader because the purported owner moved for return of property under the Criminal Rules, the purported owner's contempt motion was indistinguishable from a civil tort claim against the State, and the purported owner did not comply with the statutory requirements for claims against the State. State v. New Holland, 2015 ND 223, 869 N.W.2d 136, 2015 N.D. LEXIS 238 (N.D. 2015).

District court properly dismissed a solicitor’s counterclaim for damages based on the tort of abuse of process for the injuries of emotional distress and damage to her reputation and ordered default judgment as a sanction because she did not comply with the statutory notice requirements, she sought to bring a claim for money damages against the State, and the record supported the court’s finding that her non-compliance was deliberate and in bad faith. State ex rel. Stenehjem v. Maras, 2021 ND 68, 958 N.W.2d 475, 2021 N.D. LEXIS 72 (N.D. 2021).

Service.

In an employee’s age discrimination suit against a university, the university was equitably estopped from asserting the statute of limitation because counsel for the employee relied on the university’s statement that it would admit service. Ellis v. N.D. State Univ., 2009 ND 59, 764 N.W.2d 192, 2009 N.D. LEXIS 41 (N.D. 2009), dismissed, 2010 ND 114, 783 N.W.2d 825, 2010 N.D. LEXIS 114 (N.D. 2010).

Written Notice of Claim.

A public entity’s actual notice of a claim does not satisfy this section’s requirement of presenting written notice of a claim to the appropriate governmental body. Messiha v. State, 1998 ND 149, 583 N.W.2d 385, 1998 N.D. LEXIS 165 (N.D. 1998).

Notice of wrongful death claim filed by surviving spouse of passenger killed in collision with Department of Transportation truck did not satisfy written notice of claim requirement as to insurer’s subrogation claim for property damage. Allied Mut. Ins. Co. v. Director of N.D. DOT, 1999 ND 2, 589 N.W.2d 201, 1999 N.D. LEXIS 14 (N.D. 1999).

Collateral References.

Sufficiency of notice of claim against local governmental unit as regards identity, name, address, and residence of claimant, 53 A.L.R.5th 617.

Waiver of, or estoppel to assert, failure to give or defects in notice of claim against state or local political subdivision — modern status, 64 A.L.R.5th 519.

32-12.2-05. Arbitration of claims.

The director of the office of management and budget, in consultation with the head of the state entity involved and the attorney general, may agree to submit a claim covered by the state risk management fund to mediation or binding arbitration. If a claim is submitted to arbitration, the arbitrator must apply the limitations on liability imposed under this chapter in deciding the claim.

Source:

S.L. 1995, ch. 329, § 11.

32-12.2-06. Liability insurance — Reinsurance.

Upon approval of the director of the office of management and budget, an entity of the state may participate in a government self-insurance pool or may purchase insurance against liability of the entity and its employees for damages resulting from claims under this chapter. The director shall limit participation in government self-insurance pools and, except as provided in this section, the purchase of insurance to exposures determined to cause an excessive financial risk to the state risk management fund, including exposures reasonably expected to deplete the fund and have a significant detrimental impact on the state’s budget. The director shall develop a state self-retention program that provides as much coverage as possible of potential liability recognized by this chapter, but that includes insurance purchases in a manner that is determined appropriate by the director in consultation with the state risk manager. The insurance may be provided by an insurance company authorized to do business in this state which the insurance commissioner has determined to be responsible and financially sound, considering the extent of the coverage required, or coverage may be provided by a government self-insurance pool. If a premium savings will result and the director of the office of management and budget approves, the insurance policy or memorandum of coverage may be in force from one through three years from the date of issue. The director may procure an excess loss reinsurance contract for the state.

Source:

S.L. 1995, ch. 329, § 11; 1997, ch. 15, § 31.

32-12.2-07. Risk management fund — Appropriation.

  1. The director of the office of management and budget shall implement and administer a program of self-retention against liability for the state through the establishment of a risk management fund. Each entity of the state shall participate in the program by contributing the appropriate share of its costs as determined by the director.
  2. The state risk management fund is a special fund in the state treasury administered by the director of the office of management and budget. The fund is a revolving fund consisting of contributions from participating state entities, all payments received by the fund from its activities, and other appropriations by the legislative assembly. The state investment board shall invest the fund in accordance with chapter 21-10. Funds received as contributions from state entities, all other payments deposited in the fund, and interest and income received on investments are hereby appropriated on a continuing basis for the purposes of the fund. Section 54-44.1-11 does not apply to the fund.
  3. The director of the office of management and budget shall:
    1. Review the state’s exposure to various types of potential risks in consultation with affected state entities and advise state entities as to the reduction of risk and fiscal management of those losses.
    2. Be responsible for statewide risk management coordination, evaluation of funding and insuring alternatives, and the approval of all liability insurance purchases or government self-insurance pool participation in consultation with affected state entities.
    3. Identify methods to eliminate redundant efforts in the management of state risk management and insurance programs.
    4. Administer the state risk management fund or contract for a third-party administrator.
  4. The director of the office of management and budget may request bids from insurance carriers or government self-insurance pools or negotiate with insurance carriers and government self-insurance pools and may enter into contracts of insurance with carriers or memorandums of coverage with government self-insurance pools that are best qualified to underwrite and service insurance or coverage programs for the state through the risk management fund.

Source:

S.L. 1995, ch. 329, § 11; 1997, ch. 286, § 5; 1999, ch. 37, § 25.

32-12.2-08. Duties of director of the office of management and budget.

The director of the office of management and budget is responsible for determining the specifications for liability insurance or coverage for the state. The director shall require an insurance company or government self-insurance pool providing coverage for the state to guarantee that its policy or memorandum of coverage provides minimum coverages pursuant to required specifications and is primary coverage to any coverage under the risk management fund.

Source:

S.L. 1995, ch. 329, § 11; 1997, ch. 286, § 6.

32-12.2-09. Insurance no waiver of immunity.

No purchase of insurance or participation in a government self-insurance pool or self-retention fund by the state may be construed as a waiver of any immunity to suit.

Source:

S.L. 1995, ch. 329, § 11; 1997, ch. 286, § 7.

32-12.2-10. Eleventh Amendment immunity preserved.

This chapter does not waive the state’s immunity under the Eleventh Amendment to the United States Constitution in any manner, and this chapter may not be construed to abrogate that immunity.

Source:

S.L. 1995, ch. 329, § 11.

Law Reviews.

Sovereign Immunity — Judicial Abrogation of North Dakota’s Sovereign Immunity Results in Its Possible Legislative Reassertion and Legislation to Provide Injured Parties with a Remedy for the Torts Committed by the State or Its Agents, 71 N.D. L. Rev. 761 (1995).

32-12.2-11. Certain records relating to claims against the state or state employees privileged and exempt from open records law.

  1. The following records in the possession of the office of management and budget or a public entity are privileged and exempt and are not subject to section 44-04-18 or section 6 of article XI of the Constitution of North Dakota:
    1. Records containing information relating to that portion of the funds or liability reserves of the risk management fund established for the purpose of satisfying a specific pending or reasonably predictable claim against the state or a state employee; and
    2. Incident reports, investigation reports, or other risk management fund records of a pending or reasonably predictable claim against the state or a state employee.
  2. The office of management and budget shall make available for public disclosure records identified in subsection 1 when disclosure of the record will not prejudice any outstanding claim or reasonably predictable claim against the state or a state employee, all civil litigation or adversarial administrative proceedings, including the exhaustion of all appellate remedies, have been completed, and, in the case of reasonably predictable claims, the applicable statute of limitations has expired.
  3. Any party to an action against the state or a state employee acting within the scope of employment as defined in this chapter shall comply with applicable rules of civil procedure when requesting documents or other information in the possession or control of the state.

Source:

S.L. 1997, ch. 286, § 8; 2009, ch. 287, § 1; 2021, ch. 259, § 2, eff August 1, 2021.

Effective Date.

The 2009 amendment of this section by section 1 of chapter 287, S.L. 2009 became effective August 1, 2009.

32-12.2-12. State agency loss control committee records and meetings privileged and exempt from open records and open meetings law.

The records of any state agency loss control committee addressing any pending or reasonably predictable claim are exempt from section 44-04-18 and are not open records under section 6 of article XI of the Constitution of North Dakota unless the director of the office of management and budget determines disclosure will not prejudice any pending or reasonably predictable claim and the meetings of any loss control committee of a governing body are not public meetings subject to section 44-04-19 and section 5 of article XI of the Constitution of North Dakota. The records and communications at meetings of the committee regarding any pending or reasonably predictable claim are privileged and are not subject to subpoena or discovery or introduction into evidence in any civil action. The records of the committee include all information, data, reports, or records created by or made available to the committee. Any information, data, report, or record otherwise available from original sources is not confidential or immune from discovery or use in any civil action merely because it was presented or considered during the proceedings of the committee. A person who testified before the committee or who is a member of the committee may testify as to matters within that person’s knowledge but may not be asked about the records of, the testimony before, or the discussions of the committee. This section does not relieve any person of any liability incurred as a result of actions reviewed by the committee.

Source:

S.L. 1997, ch. 286, § 9; 2011, ch. 332, § 1.

Effective Date.

The 2011 amendment of this section by section 1 of chapter 332, S.L. 2011 became effective April 11, 2011, pursuant to an emergency clause in section 11 of chapter 332, S.L. 2011.

32-12.2-13. Contract between the state and a political subdivision.

A contract between the state and a political subdivision may not contain a provision that requires one party to assume the liability of the other or the liability of a third party or to bear the costs of defense of actions against the other or against a third party.

Source:

S.L. 1997, ch. 286, § 10; 2009, ch. 288, § 1.

Effective Date.

The 2009 amendment of this section by section 1 of chapter 288, S.L. 2009 became effective April 23, 2009, pursuant to an emergency clause in section 2 of chapter 288, S.L. 2009.

32-12.2-14. Risk management motor vehicle accident review board — Powers — Records — Meetings.

The director of the office of management and budget shall establish a risk management motor vehicle accident review board to review any accident involving a motor vehicle owned or leased by the state and operated by a state employee that results in bodily injury or significant property damage. The board is composed of the director of the department of transportation, or the director’s designee, who shall serve as chairman of the board; the director of the office of management and budget, or the director’s designee; the superintendent of the highway patrol or the superintendent’s designee; and two state employees selected by the other board members to serve two-year terms.

The risk management motor vehicle accident review board shall review accidents involving state-owned or state-leased vehicles operated by state employees that result in bodily injury or significant property damage in order to improve traffic safety and driver training and to reduce the number of traffic accidents. The board shall adopt rules concerning receiving accident reports, holding meetings, receiving verbal or written information, making recommendations, communicating with state agencies and employees, and informing state agencies of its recommendations. Three members of the board constitute a quorum and an affirmative vote of at least three board members is required for the board to take action and make a recommendation.

The duties of the chairman include scheduling meetings; notifying participants; receiving and maintaining board records, reports, and other material; and communicating with agencies concerning the board’s recommendations.

The department of transportation shall report state motor vehicle-related accidents to the board for review involving bodily injury or significant property damage or if there was a citation issued to the state employee operating the state-owned or state-leased motor vehicle. After review, the board may recommend driver training; defensive driver training; emergency vehicle operational training; physical, written, or operational examinations; or restrictions on the use of state-owned or state-leased motor vehicles. The state agency employing the employee operating the state-owned or state-leased motor vehicle involved in the traffic accident shall decide whether to implement the board’s recommendation.

State employees must be paid and may not be required to take any leave for time needed to assist the board, and all state employers shall reimburse their employees for travel expenses incurred in assisting the board.

The board must be deemed to be a state agency loss-control committee under section 32-12.2-12 and all of the board’s current or former members and all participants providing any verbal or written information to the board are entitled to the rights against production of records or testimony as contained in this section.

The department of transportation shall internally review all accidents involving a motor vehicle owned or leased by the state that is not submitted to the board for review to determine whether the accident was preventable and make recommendations to the agency employing the employee involved in the accident which may include recommendations on the same issues as made by the board. The department may defer to the determinations and recommendations of an agency loss control committee approved by the board. An employee may request further review by the board of any determination or recommendation of the department.

Source:

S.L. 1999, ch. 304, § 2; 2011, ch. 246, § 1.

Effective Date.

The 2011 amendment of this section by section 1 of chapter 246, S.L. 2011 became effective August 1, 2011.

32-12.2-15. Contracts limiting liability to the state.

  1. Notwithstanding any provision in this chapter to the contrary, an agency may agree to limit the liability of a contractor to the state if the agency determines such services or products cannot be effectively obtained without such limitation and the limitation does not pose any significant risk of loss to the state and is in the best interests of the state. The agency, in consultation with the office of management and budget and the attorney general’s office, shall prepare a written documentation before agreeing to any liability limitation. An agency’s authority to agree to a limitation of liability is limited to contracts for the purchase or lease of, or services related to, software, communication, electronic equipment, and economic forecasting.
  2. An agency may limit its ability to recover indirect consequential damages.
  3. If the extent of potential direct loss is unknown, an agency may agree to limit direct damages to a reasonably estimated amount commensurate with the foreseeable risk of loss to the state. The amount must be equal to twice the total value of the contract, unless all parties to the contract agree to an alternative amount. Any agreed upon amount that is less than twice the value of the contract must be approved by the director of the office of management and budget. The liquidated damages and retainage provisions for delay, missed deadlines, and other breaches are not subject to a general limitation on direct or indirect damages authorized under this section.
  4. A contract under this section may not limit any loss to the state resulting from fraud or other intentional or willful misconduct, breach of confidentiality obligations, or loss resulting from tangible property damage or personal injury.

Source:

S.L. 2005, ch. 301, § 1; 2009, ch. 289, § 1; 2013, ch. 253, § 1; 2021, ch. 260, § 1, eff March 23, 2021.

Effective Date.

The 2013 amendment of this section by section 1 of chapter 253, S.L. 2013 became effective August 1, 2013.

The 2009 amendment of this section by section 1 of chapter 289, S.L. 2009 became effective August 1, 2009.

32-12.2-16. Ratifying contracts limiting liability to the state.

Any employee or official of an agency who enters a contract requiring the agency to limit the liability of the contracting party without first consulting with the office of management and budget and the attorney general’s office will be deemed to be acting within the scope of the employee’s or official’s employment provided the contract is approved or ratified by the attorney general and the director of the office of management and budget and otherwise meets the conditions contained in section 32-12.2-15.

Source:

S.L. 2005, ch. 301, § 2; 2013, ch. 253, § 2.

Effective Date.

The 2013 amendment of this section by section 2 of chapter 253, S.L. 2013 became effective August 1, 2013.

32-12.2-17. Indemnification and insurance requirements in state contracts.

  1. The director of the office of management and budget shall establish guidelines for indemnification and insurance provisions in contracts that may be entered by an executive branch state agency. The director shall consult with representatives of executive branch state agencies, the insurance industry, and the business community to establish and revise the guidelines and provisions. The guidelines must establish procedures for determining the appropriate indemnification and insurance provisions in contracts.
  2. If a contract for services requires a provision for indemnification, the contract must require the contractor to indemnify the state and its agencies, officers, and employees for vicarious liability, but may not require indemnification for the contributory negligence, comparative degree of fault, sole negligence, or intentional misconduct of the state or its agencies, officers, and employees, unless the director of the office of management and budget or the director’s designee determines a more stringent indemnification provision is appropriate. If indemnification is required, the contract must require that the state be endorsed on the contractor’s commercial general liability policy as an additional insured or must require an equivalent form of protection for the state.
  3. This section does not apply to a contract between an executive branch state agency and another person that is the owner of private property that is being used to accommodate a state construction project.
  4. The failure of the state to comply with subsection 2 does not void any part of a contract.

Source:

S.L. 2007, ch. 292, § 1.

32-12.2-18. Student required driving in educational programs.

Upon request by any state institution of higher education, the office of management and budget, through the risk management fund, shall provide a defense and administer claims against students arising from the operation of a vehicle owned or leased by the state the operation of which is a required part of an established course of study. Liability shall be limited to the required amounts of financial responsibility contained in section 39-16.1-02. Nothing in this chapter makes the state responsible for the actions of the student or requires indemnification for any loss beyond the limits provided in this section, nor provides any benefits to the student except those minimum levels undertaken in a program of self-insurance filed under section 26.1-41-05.

Source:

S.L. 2011, ch. 247, § 1.

Effective Date.

This section became effective March 14, 2011, pursuant to an emergency clause in section 2 of chapter 247, S.L. 2011.

32-12.2-19. Data breach response and remediation costs.

The director of the office of management and budget may pay from the risk management fund costs necessary for notification and remediation following a data breach involving a state entity. The director of the office of management and budget, in consultation with the information technology department and the state entity involved, shall determine what measures are to be taken under this section. Expenditures under this section are limited to two hundred fifty thousand dollars per incident and may be made only to the extent the risk management fund can continue to meet current and future liability obligations and the response and remediation costs are not covered through insurance. The director may purchase insurance and approve the purchase of insurance by state entities to cover data breach response and remediation costs. Each state entity shall contribute the appropriate share of its costs under this section as determined by the director.

Source:

S.L. 2017, ch. 234, § 1, eff August 1, 2017.

CHAPTER 32-13 Actions in Place of Scire Facias and Quo Warranto

32-13-01. Remedies obtainable by action instead of writ.

The remedies formerly attainable by the writ of scire facias, the writ of quo warranto, and proceedings by information in the nature of quo warranto may be obtained by civil action in the district court under the provisions of this chapter.

Source:

C. Civ. P. 1877, § 531; R.C. 1895, § 5741; R.C. 1899, § 5741; R.C. 1905, § 7349; C.L. 1913, § 7969; R.C. 1943, § 32-1301.

Derivation:

Wait’s (N.Y.) Code, 428; Harston’s (Cal.) Practice, 802.

Notes to Decisions

Intrusion in Office.

A person who is the incumbent of an office may maintain an action against an intruder. Jenness v. Clark, 21 N.D. 150, 129 N.W. 357, 1910 N.D. LEXIS 156 (N.D. 1910).

Jurisdiction.

The supreme court ordinarily will not assume jurisdiction under the statute. State ex rel. Walker v. McLean County, 11 N.D. 356, 92 N.W. 385, 1902 N.D. LEXIS 224 (N.D. 1902).

Quo Warranto.

Although the old form of proceedings by writ of quo warranto and information in the nature of quo warranto is abolished, the jurisdiction and powers of the courts and the right to reach through them the remedies which that writ or information once afforded are not changed. Territory ex rel. Peterson v. Hauxhurst, 14 N.W. 432, 3 Dakota 205, 1882 Dakota LEXIS 19 (Dakota 1882).

The action or remedy obtainable by a quo warranto proceeding is not enlarged by the statute. Wishek v. Becker, 10 N.D. 63, 84 N.W. 590, 1900 N.D. LEXIS 13 (N.D. 1900).

The legality of the proceedings of a school board in reforming a district which could be tested by the common-law writ of quo warranto may be tested by a civil action in the district court. Weiderholt v. Lisbon Special Sch. Dist., 41 N.D. 146, 169 N.W. 809, 1918 N.D. LEXIS 132 (N.D. 1918).

In a proceeding to review a void order of a school board, inquiry will not extend to a determination of the legality of prior acts of the board, which may be properly inquired into in a civil action substituted for quo warranto. State ex rel. Mayo v. Thursby-Butte Special Sch. Dist., 45 N.D. 555, 178 N.W. 787, 1920 N.D. LEXIS 159 (N.D. 1920).

A statute providing that remedies formerly obtainable by the writ of quo warranto may be obtained by a civil action in the district court does not abolish the writ of quo warranto nor a proceeding by information in the nature thereof, but is cumulative and an additional procedure. State ex rel. Sathre v. Roberts, 67 N.D. 92, 269 N.W. 913, 1936 N.D. LEXIS 155 (N.D. 1936).

It is a purpose of quo warranto or an action in the nature of quo warranto to inquire into the ultimate legality of a municipal corporation. Hazelton-Moffit Special Sch. Dist. v. Ward, 107 N.W.2d 636, 1961 N.D. LEXIS 62 (N.D. 1961).

Title to Office.

The title to an office may be tried by quo warranto. State ex rel. Butler v. Callahan, 4 N.D. 481, 61 N.W. 1025, 1895 N.D. LEXIS 46 (N.D. 1895).

Collateral References.

Quo Warranto l et seq.; Scire Facias 1 et seq.

46 Am. Jur. 2d, Judgments, §§ 391 et seq.; 65 Am. Jur. 2d, Quo Warranto, § 1 et seq.

Corporation as necessary or proper party defendant in proceedings to determine validity of election or appointment of corporate officer or director, 21 A.L.R.2d 1048.

Statute of limitations or laches as applied to quo warranto proceedings, 26 A.L.R.2d 828.

Part payment or promise to pay judgment as affecting time for revival, 45 A.L.R.2d 967.

Right of private person not claiming office to maintain quo warranto proceedings to test title to or existence of public office, 51 A.L.R.2d 1306.

Quo warranto as remedy for determination of rights of noncivil service public employee, with respect to discharge, under state veterans’ tenure statute, 58 A.L.R.2d 960, 1005.

Election ballots as admissible in quo warranto proceedings, 71 A.L.R.2d 353.

Unincorporated private association, remedy for determining right or title to office in, 82 A.L.R.2d 1169, 1172.

Default judgment against defendant, without introduction of evidence, in quo warranto proceeding, 92 A.L.R.2d 1121.

Absentee Voters’ Law, quo warranto proceedings under, 97 A.L.R.2d 344.

32-13-02. Who plaintiff.

When an action under this chapter is prosecuted by the attorney general, the state of North Dakota shall be plaintiff. When it is prosecuted by a private person, such person shall be the plaintiff therein and the proceedings in such action shall be the same as in an action by a private person, except as otherwise specially provided.

Source:

R.C. 1895, § 5742; R.C. 1899, § 5742; R.C. 1905, § 7350; C.L. 1913, § 7970; R.C. 1943, § 32-1302.

32-13-03. Who may bring action against usurping officer.

An action may be commenced by the state, or any person who has a special interest in the action, against the parties offending in the following cases:

  1. When any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or military, or any franchise within this state, or any office in a corporation or limited liability company created by the authority of this state.
  2. When any public officer, civil or military, shall have done or suffered an act which by the provisions of law shall make a forfeiture of the officer’s office.
  3. When any association or number of persons shall act within this state as a corporation without being duly incorporated or as a limited liability company without being duly organized.

Source:

C. Civ. P. 1877, § 534; R.C. 1895, § 5743; R.C. 1899, § 5743; R.C. 1905, § 7351; C.L. 1913, § 7971; R.C. 1943, § 32-1303; S.L. 1993, ch. 54, § 106.

Derivation:

Wait’s (N.Y.) Code, 432; Harston’s (Cal.) Practice, 803.

Cross-References.

Removal by judicial proceedings, see N.D.C.C. ch. 44-10.

Notes to Decisions

Annexation of Territory.

A proceeding in the nature of quo warranto is not intended to provide a remedy for the unlawful or irregular annexation of territory adjacent to an incorporated city when instituted by individuals or those having special interests in the subject of the action. Red River Valley Brick Co. v. City of Grand Forks, 27 N.D. 8, 145 N.W. 725, 1914 N.D. LEXIS 31 (N.D. 1914).

County Judge, Removal from Office.

A private person, who had no special interest in the result of the action which was peculiar to himself, could not institute an action in his own name to remove county judge from office on general grounds. Wishek v. Becker, 10 N.D. 63, 84 N.W. 590, 1900 N.D. LEXIS 13 (N.D. 1900).

Intrusion in Office.

In an action to determine title to office of register of deeds [now recorder], relator must be entitled to the office in controversy. Territory ex rel. Peterson v. Hauxhurst, 14 N.W. 432, 3 Dakota 205, 1882 Dakota LEXIS 19 (Dakota 1882).

A county superintendent of schools, having the right to hold over until her successor was elected and qualified, could maintain proceeding to try title to the office against an intruder who was elected but was ineligible to hold the office. Jenness v. Clark, 21 N.D. 150, 129 N.W. 357, 1910 N.D. LEXIS 156 (N.D. 1910).

Right to hold office as alderman of a city may be tested under this section. State ex rel. Sathre v. Quickstad, 66 N.D. 689, 268 N.W. 683, 1936 N.D. LEXIS 215 (N.D. 1936).

Proper Action.

The right of a person to hold office cannot be determined in an action to test the validity of the dissolution and annexation of school districts, but only in an action by quo warranto. Walker v. Weilenman, 143 N.W.2d 689, 1966 N.D. LEXIS 165 (N.D. 1966).

School District Organization.

The directors of an old school district could prosecute an action in the nature of quo warranto in their own name to determine if attempted organization of new district out of a part of the territory of the old district was illegal. Tallmadge v. Walker, 34 N.D. 590, 159 N.W. 71, 1916 N.D. LEXIS 61 (N.D. 1916).

Sheriff.
—Removal from Office.

The attorney general may bring an action in the name of the state for removal of sheriff from office for malfeasance. State ex rel. AG v. District Court of Fourth Judicial Dist., 13 N.D. 211, 100 N.W. 248, 1904 N.D. LEXIS 30 (N.D. 1904).

Township Division.

The district attorney was the proper party to bring a proceeding in the nature of quo warranto to inquire by what authority defendants were exercising the offices of supervisors of unauthorized township. Territory v. Armstrong, 50 N.W. 832, 6 Dakota 226 (1889).

32-13-04. Security for costs from private party.

Before commencing an action under this chapter at the request of a party having an interest therein, the attorney general may require as a condition of commencing the same that satisfactory security be given to indemnify the state against costs and expenses which may be incurred therein.

Source:

C. Civ. P. 1877, § 535; R.C. 1895, § 5744; R.C. 1899, § 5744; R.C. 1905, § 7352; C.L. 1913, § 7972; R.C. 1943, § 32-1304.

Derivation:

Wait’s (N.Y.) Code, 534; Harston’s (Cal.) Practice, 810.

32-13-05. Complaint for usurping office — Arrest of defendant.

The complaint in an action commenced against a person for usurping an office in addition to the statement of the claim for relief also may set forth the name of the person rightfully entitled to the office with a statement of that person’s right thereto, and in such case, upon proof by affidavit that the defendant has received fees or emoluments belonging to the office and by means of the defendant’s usurpation thereof, an order may be granted by the judge of the court for the arrest of such defendant.

Source:

C. Civ. P. 1877, § 536; R.C. 1895, § 5745; R.C. 1899, § 5745; R.C. 1905, § 7353; C.L. 1913, § 7973; R.C. 1943, § 32-1305; S.L. 1985, ch. 82, § 76.

Derivation:

Wait’s (N.Y.) Code, 435; Harston’s (Cal.) Practice, 804.

32-13-06. What judgment shall include.

In every action against a person for usurping an office, judgment shall be rendered upon the right of the defendant and also upon the right of the person alleged to be entitled to the office or only upon the right of the defendant, as justice shall require.

Source:

C. Civ. P. 1877, § 537; R.C. 1895, § 5746; R.C. 1899, § 5746; R.C. 1905, § 7354; C.L. 1913, § 7974; R.C. 1943, § 32-1306.

Derivation:

Wait’s (N.Y.) Code, 436; Harston’s (Cal.) Practice, 805.

32-13-07. When claimant takes office.

If judgment is rendered upon the right of the person alleged to be entitled to the office and the same is in favor of such person, that person shall be entitled, after taking the oath of office and executing such official bond as may be required by law, to begin the execution of the office, and it shall be that person’s duty immediately thereafter to demand of the defendant in the action all the books and papers in the defendant’s custody or within the defendant’s power, belonging to the office from which the defendant shall have been excluded.

Source:

C. Civ. P. 1877, § 538; R.C. 1895, § 5747; R.C. 1899, § 5747; R.C. 1905, § 7355; C.L. 1913, § 7975; R.C. 1943, § 32-1307.

Derivation:

Wait’s (N.Y.) Code, 437; Harston’s (Cal.) Practice, 806.

Notes to Decisions

Application of Statute.

This section applies to a public office of the state or its subdivisions. Halland v. Verendrye Elec. Coop., 66 N.W.2d 902, 1954 N.D. LEXIS 114 (N.D. 1954).

32-13-08. Refusal to deliver — Punishment.

If the defendant refuses or neglects to deliver any of the books or papers demanded, as prescribed in section 32-13-07, the defendant is guilty of a class B misdemeanor, and the court, or a judge thereof, by order, may put the person entitled to the office in possession thereof and of all the books and papers belonging thereto, and any party refusing to deliver the same, when ordered as aforesaid, shall be punished as for a contempt.

Source:

C. Civ. P. 1877, § 539; R.C. 1895, § 5748; R.C. 1899, § 5748; R.C. 1905, § 7356; C.L. 1913, § 7976; R.C. 1943, § 32-1308; S.L. 1975, ch. 106, § 344.

Derivation:

Wait’s (N.Y.) Code, 438.

Notes to Decisions

Contempt.

A judgment under this chapter is not self-executing to the extent that failure to comply does not subject the defendant to immediate contempt. It is not until the court or a judge thereof by order has put the person entitled to the office in possession that the party refusing to deliver possession shall be punished for a contempt. Halland v. Verendrye Elec. Coop., 66 N.W.2d 902, 1954 N.D. LEXIS 114 (N.D. 1954).

Corporate Office.

The provision in this section punishing refusal to turn over all the books and papers in the custody or power of the defendant upon demand of the victor who has taken the oath and executed the bond required by law is not applicable where an office in a private corporation is involved. Halland v. Verendrye Elec. Coop., 66 N.W.2d 902, 1954 N.D. LEXIS 114 (N.D. 1954).

Demand.

Failure to vacate the office prior to demand is not a misdemeanor. Halland v. Verendrye Elec. Coop., 66 N.W.2d 902, 1954 N.D. LEXIS 114 (N.D. 1954).

32-13-09. Damages for usurpation.

If judgment is rendered upon the right of the person alleged to be entitled to the office in favor of such person, that person may recover by action the damages which that person shall have sustained by reason of the usurpation by the defendant of the office from which such defendant has been excluded.

Source:

C. Civ. P. 1877, § 540; R.C. 1895, § 5749; R.C. 1899, § 5749; R.C. 1905, § 7357; C.L. 1913, § 7977; R.C. 1943, § 32-1309.

Derivation:

Wait’s (N.Y.) Code, 439; Harston’s (Cal.) Practice, 807.

32-13-10. Joinder of several claimants.

When several persons claim to be entitled to the same office or franchise, one action may be brought against all such persons, in order to try their respective rights to such office or franchise.

Source:

C. Civ. P. 1877, § 541; R.C. 1895, § 5750; R.C. 1899, § 5750; R.C. 1905, § 7358; C.L. 1913, § 7978; R.C. 1943, § 32-1310.

Derivation:

Wait’s (N.Y.) Code, 440; Harston’s (Cal.) Practice, 808.

32-13-11. Judgment against intruder.

When a defendant against whom an action shall have been commenced shall be adjudged guilty of usurping, intruding into, or unlawfully holding or exercising any office, franchise, or privilege, judgment shall be rendered that the defendant be excluded from such office, franchise, or privilege and also that the plaintiff recover costs against the defendant.

Source:

C. Civ. P. 1877, § 542; R.C. 1895, § 5751; R.C. 1899, § 5751; R.C. 1905, § 7359; C.L. 1913, § 7979; R.C. 1943, § 32-1311; S.L. 1975, ch. 106, § 345.

Derivation:

Wait’s (N.Y.) Code, 441; Harston’s (Cal.) Practice, 809.

Notes to Decisions

Fine.

A fine was improperly imposed upon city alderman ousted from office because of statutory disqualification where there was no evidence of misconduct or fraud. State ex rel. Sathre v. Quickstad, 66 N.D. 689, 268 N.W. 683, 1936 N.D. LEXIS 215 (N.D. 1936).

CHAPTER 32-14 Actions to Recover Forfeitures

32-14-01. What forfeitures recoverable in civil action.

In all cases not otherwise specially provided for by law, when a forfeiture shall be incurred by any person, and the act or omission for which the same is imposed shall not be a misdemeanor, such forfeiture may be sued for and recovered in a civil action. When such act or omission is punishable by fine and imprisonment, or by fine or imprisonment, or is specially declared by law to be a misdemeanor, it shall be deemed a misdemeanor within the meaning of this chapter. The word forfeiture as used in this chapter shall include any penalty in money or goods, other than a fine, imposed by law as a punishment for crime.

Source:

R.C. 1895, § 5785; R.C. 1899, § 5785; R.C. 1905, § 7394; C.L. 1913, § 8014; R.C. 1943, § 32-1401.

Collateral References.

Forfeitures 1-11.

36 Am. Jur. 2d, Forfeitures and Penalties, § 1 et seq.

Forfeiture of property for unlawful use before trial of individual offender, 3 A.L.R.2d 738.

Insured’s forfeiture because of breach of condition of liability policy with respect to notice of accident, claim, etc., relief from, 18 A.L.R.2d 443.

Conviction in criminal prosecution as bar to action for seizure, condemnation, or forfeiture of property, 27 A.L.R.2d 1137.

Storage or similar caretaking charges as taxable costs in proceedings to forfeit personal property, 60 A.L.R.2d 813.

Lawfulness of seizure of property used in violation of law as prerequisite to forfeiture action or proceeding, 8 A.L.R.3d 473.

Modern status of rules requiring liability insurer to show prejudice to escape liability because of insured’s failure or delay in giving notice of accident or claim, or in forwarding suit papers, 32 A.L.R.4th 141.

32-14-02. By whom action brought.

Such action shall be brought as follows:

  1. If the entire recovery is payable to the state, by the attorney general or the state’s attorney of the proper county in the name of the state.
  2. If the entire recovery is payable to a public corporation, by its proper legal officer in the name of such corporation.
  3. If the recovery is payable partly to the state or a public corporation and partly to an individual, by such individual or by the state or public corporation, as the case may be, or by such individual and the state or public corporation.

Source:

R.C. 1895, § 5786; R.C. 1899, § 5786; R.C. 1905, § 7395; C.L. 1913, § 8015; R.C. 1943, § 32-1402.

Notes to Decisions

State.

The state has no capacity to sue for penalties, except as authorized by law. State v. Messner, 9 N.D. 186, 82 N.W. 737, 1900 N.D. LEXIS 211 (N.D. 1900).

Penalty for failure of road overseer to destroy noxious weeds could not be recovered by the state. State v. Messner, 9 N.D. 186, 82 N.W. 737, 1900 N.D. LEXIS 211 (N.D. 1900).

32-14-03. What complaint to allege — Attachment.

It shall be sufficient to allege in the complaint that the defendant is indebted to the plaintiff in the amount of the forfeiture claimed according to the provisions of the statute which imposes it, specifying the section and chapter containing such statute. When such section imposes a forfeiture for several offenses or delinquencies, it shall specify the particular offense or delinquency for which the action is brought, with a demand for judgment for the amount of such forfeiture. In case the defendant is not a resident of the state, an attachment may be issued in such action as in an ordinary civil action against nonresidents. Any such action may be brought for and the judgment therein may include as many forfeitures as the defendant may have incurred prior to its commencement.

Source:

R.C. 1895, § 5787; R.C. 1899, § 5787; R.C. 1905, § 7396; C.L. 1913, § 8016; R.C. 1943, § 32-1403.

Notes to Decisions

Statute Authorizing Penalty.

In an action to recover a statutory penalty, the complaint must indicate clearly the statute by virtue of which the penalty is claimed. Greenberg v. Union Nat'l Bank, 5 N.D. 483, 67 N.W. 597, 1896 N.D. LEXIS 47 (N.D. 1896); Erickson v. Citizens' Nat'l Bank, 9 N.D. 81, 81 N.W. 46, 1899 N.D. LEXIS 133 (N.D. 1899); Sheets v. Prosser, 16 N.D. 180, 112 N.W. 72, 1907 N.D. LEXIS 29 (N.D. 1907).

32-14-04. Complaint for forfeited goods.

In an action brought to recover goods or other things forfeited by the provisions of any statute, it shall be sufficient to allege in the complaint that such goods or other things have been forfeited, specifying the section and chapter containing such statute, with a demand of judgment for the delivery of such goods or other things or the value thereof.

Source:

R.C. 1895, § 5788; R.C. 1899, § 5788; R.C. 1905, § 7397; C.L. 1913, § 8017; R.C. 1943, § 32-1404.

32-14-05. When forfeiture is not for specific amount.

When a forfeiture is imposed, not exceeding a specific sum, or when it is not less than one sum nor more than another, the action may be brought for the highest sum specified. A judgment may be rendered for such sum as the court or jury shall assess or determine to be proportionate to the offense.

Source:

R.C. 1895, § 5789; R.C. 1899, § 5789; R.C. 1905, § 7398; C.L. 1913, § 8018; R.C. 1943, § 32-1405.

32-14-06. Judgment includes costs — Commitment — Execution.

In each case when judgment is recovered pursuant to this chapter, it also shall include the costs of the action, and it shall direct that if the same is not paid, the defendant shall be committed to the county jail of the proper county there to be imprisoned for a specified time, not exceeding six months. Such period shall be fixed by the court in view of all the circumstances of the case, or until otherwise discharged pursuant to law. In such case a commitment shall issue as in an ordinary criminal action. This section shall not prevent the enforcement of any such judgment by execution at any time within one year from its rendition.

Source:

R.C. 1895, § 5790; R.C. 1899, § 5790; R.C. 1905, § 7399; C.L. 1913, § 8019; R.C. 1943, § 32-1406.

32-14-07. Forfeitures — How recovered by city, corporation, or limited liability company.

All forfeitures imposed by any bylaw, ordinance, or regulation of any city or of any corporation or limited liability company organized under the laws of this state, when special provision is not otherwise made by law for their recovery nor punishment provided for the act or omission for which they are imposed, may be sued for and recovered pursuant to this chapter. It shall be sufficient to allege in the complaint that the defendant is indebted to the plaintiff in the amount of the forfeiture claimed, specifying the bylaw, ordinance, or regulation which imposes it. And when such bylaw, ordinance, or regulation imposes a penalty or forfeiture for several offenses or delinquencies, it shall specify the particular offense or delinquency for which the action brought, with a demand for a judgment for the amount of such forfeiture. All money collected on such judgment shall be paid to the city auditor or the treasurer of the corporation or limited liability company.

Source:

R.C. 1895, § 5791; R.C. 1899, § 5791; R.C. 1905, § 7400; C.L. 1913, § 8020; R.C. 1943, § 32-1407; S.L. 1967, ch. 323, § 95; 1993, ch. 54, § 106.

32-14-08. To whom moneys collected paid.

All moneys collected on account of any judgment under the provisions of this chapter, except such as are payable by law to an individual, shall be paid by the officer collecting the same to the state treasurer, county treasurer, or city auditor entitled thereto, as the case may be, within twenty days after its collection or receipt by that officer, and in case of any neglect or failure in such payment the official to whom such money should be paid may sue and collect the same from such officer by action in the name of the officer’s office and upon the official bond of such officer, if any the officer has given, with interest at the rate of twelve percent per annum from the time it should have been so paid.

Source:

R.C. 1895, § 5792; R.C. 1899, § 5792; R.C. 1905, § 7401; C.L. 1913, § 8021; R.C. 1943, § 32-1408.

Notes to Decisions

Payment into Treasury.

The money collected under this chapter must be paid into the treasury entitled thereto by some provision of law. State v. Messner, 9 N.D. 186, 82 N.W. 737, 1900 N.D. LEXIS 211 (N.D. 1900).

32-14-09. Auditor to collect forfeiture from municipal judges.

Every city auditor shall demand of and recover from each municipal judge of the city all moneys received by such judge upon judgments rendered by such judge in actions under this chapter, and every such judge on demand of such auditor shall produce to the auditor the judge’s docket for examination and all process and papers concerning or in such actions. In case of refusal or neglect by such judge to pay over moneys promptly upon such demand, such auditor shall institute an action therefor in the name of the office of the city auditor against such judge and the sureties upon the judge’s official bond.

Source:

R.C. 1895, § 5793; R.C. 1899, § 5793; R.C. 1905, § 7402; C.L. 1913, § 8022; R.C. 1943, § 32-1409.

32-14-10. Property forfeited to state.

Whenever by the provisions of law any property, real or personal, shall be forfeited to the state, or to any officer for its use, an action for the recovery of such property alleging the ground of the forfeiture may be brought by the attorney general or by the state’s attorney of the county in which the action is triable, in any court having jurisdiction thereof.

Source:

C. Civ. P. 1877, § 547; R.C. 1895, § 5794; R.C. 1899, § 5794; R.C. 1905, § 7403; C.L. 1913, § 8023; R.C. 1943, § 32-1410.

Derivation:

Wait’s (N.Y.) Code, 447.

Collateral References.

Forfeiture of money to state or local authorities based on its association with or proximity to other contraband, 38 A.L.R.4th 496.

Necessity of conviction of offense associated with property seized in order to support forfeiture of property to state or local authorities, 38 A.L.R.4th 515.

CHAPTER 32-15 Eminent Domain

32-15-01. Eminent domain defined — How exercised — Condemnor defined — Exceptions.

  1. Eminent domain is the right to take private property for public use.
  2. Private property may not be taken or damaged for public use without just compensation first having been made to or paid into court for the owner. When private property is taken by a person, no benefit to accrue from the proposed improvement may be allowed in ascertaining the compensation to be made therefor. Private property may not be taken for the use of, or ownership by, any private individual or entity, unless that property is necessary for conducting a common carrier or utility business. A determination of the compensation must be made by a jury, unless a jury is waived. The right of eminent domain may be exercised in the manner provided in this chapter.
  3. Notwithstanding any other provision of law, a public use or a public purpose does not include public benefits of economic development, including an increase in tax base, tax revenues, employment, or general economic health.
  4. For the purpose of this chapter, “condemnor” means a person empowered to take property under the power of eminent domain.

Source:

N.D. Const., § 14; R.C. 1895, § 5955; R.C. 1899, § 5955; R.C. 1905, § 7574; C.L. 1913, § 8202; R.C. 1943, § 32-1501; S.L. 1981, ch. 353, § 3; 1993, ch. 54, § 106; 2007, ch. 293, § 16.

Cross-References.

Constitutional provisions, see N.D. Const. Art. I, § 16.

Notes to Decisions

Additional Servitude.

The erection of poles in a street without the consent of or compensation to abutting owners constitutes an additional servitude. Donovan v. Allert, 11 N.D. 289, 91 N.W. 441, 58 L.R.A. 775, 95 Am. St. Rep. 720 (1902), decided prior to the adoption of Art. 1, § 16 of the N.D. Const.

The construction and operation of a telegraph and telephone line on a rural highway is not a highway use, within the purpose of its original dedication, but a new use, and it constitutes an additional servitude upon the fee of the abutting owner which entitles him to compensation. Cosgriff v. Tri-State Tel. & Tel. Co., 15 N.D. 210, 107 N.W. 525 (1906), decided prior to the 1969 amendment of N.D.C.C. § 32-15-23, overruled on other grounds Otter Tail Power Co. v. Von Bank, 72 N.D. 497, 8 N.W.2d 599, 1942 N.D. LEXIS 148 (N.D. 1942); Tri-State Tel. & Tel. Co. v. Cosgriff, 19 N.D. 771, 124 N.W. 75, 1909 N.D. LEXIS 104 (N.D. 1909).

Award of Compensation.

In eminent domain proceedings, the trial court has no power to stay the trial of the question of damages or compensation pending the final determination of the other issues. State ex rel. Northern States Power Co. v. Teigen, 80 N.W.2d 110, 1956 N.D. LEXIS 165 (N.D. 1956).

Ordinarily an award of compensation in a condemnation case will be sustained if the amount is within the limits testified to by the witnesses, but where the award is so flagrantly against the weight of the evidence that it appears the jury was actuated by bias or prejudice, the award will be set aside. Montana-Dakota Utils. Co. v. Culver, 80 N.W.2d 541, 1957 N.D. LEXIS 93 (N.D. 1957); Northern States Power Co. v. Effertz, 94 N.W.2d 288, 1958 N.D. LEXIS 111 (N.D. 1958).

Blended Proceedings.

Landowners’ rights were fully protected by blended eminent domain and road closure proceedings. Gissel v. Kenmare Township, 512 N.W.2d 470, 1994 N.D. LEXIS 42 (N.D. 1994).

Damage Without Taking.

This section in effect constitutes a contract to pay damages for property injured in the course of a public improvement even though the property is not taken. Northern Pac. R.R. v. Morton County, 131 N.W.2d 557 (N.D. 1964).

Intersection Closure.

The closure of a street intersection by construction of an overpass unreasonably impaired the right of the business owners to have direct access to their property from the highway, and the intersection closure was a taking as a matter of law for which the property owners were entitled to a determination of just compensation for the taking. Boehm v. Backes, 493 N.W.2d 671, 1992 N.D. LEXIS 251 (N.D. 1992).

Jury Trial.

The issue of compensation for private property taken or damaged for public use must be tried to a jury, unless a jury is waived; all other issues in a condemnation action are triable to the court without a jury. Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570 (1896), distinguished, City of Grafton v. St. Paul M. & M. Ry., 16 N.D. 313, 113 N.W. 598, 22 L.R.A. (n.s.) 1 (1907); County of Pembina v. Nord, 78 N.D. 473, 49 N.W.2d 665 (1951); Kessler v. Thompson, 75 N.W.2d 172 (N.D. 1956), decided prior to the enactment of Art. I, § 16 of the N.D. Const.; distinguished, City of Grafton v. S. Paul, M. & M. Ry., 16 N.D. 313, 113 N.W. 598, 1907 N.D. LEXIS 59 (N.D. 1907).

Measure of Damages.

If the value of a tract of real estate is in controversy in condemnation proceeding, and the only evidence is that of experts, who differ in their opinions as to its value, the jury may not disregard all the evidence in the case and fix its value below the lowest or above the highest estimate of the experts, despite the fact that they may have inspected land under the order of the court. Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570 (1896), distinguished, City of Grafton v. St. Paul M. & M. Ry., 16 N.D. 313, 113 N.W. 598, 22 L.R.A. (n.s.) 1 (1907), City of Grafton v. S. Paul, M. & M. Ry., 16 N.D. 313, 113 N.W. 598, 1907 N.D. LEXIS 59 (N.D. 1907).

If property has been taken from the plaintiff for a public use, she is entitled to recover the value of the property and any and all damage whether the damage be direct, as when caused by trespass or physical invasion of the property, or consequential, as in diminution of the market value. Williams v. Fargo, 63 N.D. 183, 247 N.W. 46, 1933 N.D. LEXIS 169 (N.D. 1933).

The measure of damages for condemnation of an easement for an electric transmission line right of way over land is the value of the easement taken, as determined by the depreciation in value of the landowner’s interest in the property before taking, and not by the value of the easement to the plaintiff. Otter Tail Power Co. v. Von Bank, 72 N.D. 497, 8 N.W.2d 599, 1942 N.D. LEXIS 148 (N.D. 1942).

Any enhanced value to the property condemned caused by the development project could not be properly considered in assessing condemnation damages. City of Jamestown v. Leevers Supermarkets, 552 N.W.2d 365, 1996 N.D. LEXIS 191 (N.D. 1996).

Municipal Corporations.

A city has the power, through its city council, to lay out and open streets and, when necessary, to exercise the right of eminent domain. City of Lidgerwood v. Michalek, 12 N.D. 348, 97 N.W. 541, 1903 N.D. LEXIS 50 (N.D. 1903).

Native American Land.

Because a condemnation action is strictly in rem, and in personam jurisdiction is not required, Indian tribe’s defense of sovereign immunity was of no avail. Further, the Federal Nonintercourse Act, 25 USCS 177, did not apply to land which a tribe had purchased in fee, which was located hundreds of miles from its reservation, which had never been held in trust for the tribe, and which had been privately owned for over 100 years. Cass County Joint Water Res. Dist. v. 1.43 Acres of Land, 2002 ND 83, 643 N.W.2d 685, 2002 N.D. LEXIS 100 (N.D. 2002), overruled in part, Upper Skagit Indian Tribe v. Lundgren, — U.S. —, 138 S. Ct. 1649, 200 L. Ed. 2d 931, 2018 U.S. LEXIS 3085 (U.S. 2018).

Railroad.

The taking of property by eminent domain for a railroad purpose is a taking for public use. Northern Pac. Ry. v. Kreszeszewski, 17 N.D. 203, 115 N.W. 679 (N.D. 1908).

Taking-Test for Determination.

When governmental action impairs existing access to private property adjoining a public highway, the test for determination of a taking is the reasonableness of the access remaining. Boehm v. Backes, 493 N.W.2d 671, 1992 N.D. LEXIS 251 (N.D. 1992).

Taxable Costs.

A landowner who resists the taking of his land for a public purpose is entitled, on the recovery of judgment, to taxable costs. Petersburg Sch. Dist. v. Peterson, 14 N.D. 344, 103 N.W. 756, 1905 N.D. LEXIS 44 (N.D. 1905).

Townships.

A township, in taking land for road purposes, though acting in an irregular manner, is not a trespasser or tortfeasor. Schilling v. Carl Township, 60 N.D. 480, 235 N.W. 126, 1931 N.D. LEXIS 193 (N.D. 1931), overruled in part, Hager v. City of Devils Lake, 2009 ND 180, 773 N.W.2d 420, 2009 N.D. LEXIS 188 (N.D. 2009).

A township whose officers took possession of plaintiff’s land in an improper manner for a public road is liable for just compensation. Schilling v. Carl Township, 60 N.D. 480, 235 N.W. 126, 1931 N.D. LEXIS 193 (N.D. 1931), overruled in part, Hager v. City of Devils Lake, 2009 ND 180, 773 N.W.2d 420, 2009 N.D. LEXIS 188 (N.D. 2009).

Collateral References.

Eminent Domain l et seq.

26 Am. Jur. 2d, Eminent Domain, §§ 1 et seq.

29A C.J.S. Eminent Domain, §§ 1 et seq.

Inverse condemnation state court class actions, 49 A.L.R.4th 618.

Eminent domain, unity or contiguity of separate property sufficient to allow damages for diminished value of parcel remaining after taking of other parcel, 59 A.L.R.4th 308.

Measure of damages or compensation in eminent domain as affected by premises being restricted to particular educational, religious, charitable, or noncommercial use, 29 A.L.R.5th 36.

Law Reviews.

Highways, Environmental Legislation, and Judicial Review: The Changing Notion of Necessity, 50 N.D. L. Rev. 483 (1974).

Land Condemnation: A Comparative Study of North Dakota Statutory Law, 51 N.D. L. Rev. 387 (1975).

Case Comment: Constitutional Law--Federal Indian Law: The Erosion of Tribal Sovereignty As the Protection of the Nonintercourse Act Continues to Be Redefined More Narrowly, Cass County Joint Water Resource District v. 1. 43 Acres of Land, 2002 ND 83, 643 N.W.2d 685, 80 N.D. L. Rev. 205 (2004).

32-15-02. Purposes for which exercised.

Subject to the provisions of this chapter, the right of eminent domain may be exercised in behalf of the following public uses:

  1. All public uses authorized by the government of the United States.
  2. Public buildings and grounds for the use of the state and all other public uses authorized by the legislative assembly of the state.
  3. Public buildings and grounds for the use of any county, city, park district, or school district; canals, aqueducts, flumes, ditches, or pipes for conducting water for the use of the inhabitants of any county or city, or for draining any county or city; raising the banks of streams, removing obstructions therefrom, and widening, deepening, or straightening their channels; roads, streets, and alleys, and all other uses for the benefit of any county, city, or park district, or the inhabitants thereof, which may be authorized by the legislative assembly, but the mode of apportioning and collecting the costs of such improvement shall be such as may be provided in the statutes by which the same may be authorized.
  4. Wharves, docks, piers, chutes, booms, ferries, bridges, toll roads, byroads, plank and turnpike roads, railroads and street railways, electric light plants and power transmission lines and canals, ditches, flumes, aqueducts, and pipes for public transportation, supplying mines, and irrigating, draining, and reclaiming lands.
  5. Roads, tunnels, ditches, flumes, pipes, and dumping places for working mines, outlets, natural or otherwise, for the flow, deposit, or conduct of the tailings or refuse from mines and mill dams.
  6. Byroads leading from highways to residences and farms.
  7. Telegraph and telephone lines.
  8. Sewage disposal of any city, or of any settlement consisting of not less than ten families, or of any public buildings belonging to the state, or of any college or university.
  9. Cemeteries and public parks.
  10. Oil, gas, coal, and carbon dioxide pipelines and works and plants for supplying or conducting gas, oil, coal, carbon dioxide, heat, refrigeration, or power for the use of any county, city, or the inhabitants thereof, together with lands, buildings, and all other improvements in or upon which to erect, install, place, maintain, use, or operate pumps, stations, tanks, and other machinery or apparatus, and buildings, works, and plants for the purpose of generating, refining, regulating, compressing, transmitting, or distributing the same, or necessary for the proper development and control of such gas, oil, coal, carbon dioxide, heat, refrigeration, or power, either at the time of the taking of said property or for the future proper development and control thereof.
  11. Lands sought to be acquired by the state or any duly authorized and designated state official or board, which lands necessarily must be flooded in widening or raising the waters of any body or stream of navigable or public water in the state of North Dakota.

Source:

R.C. 1895, § 5956; R.C. 1899, § 5956; R.C. 1905, § 7575; C.L. 1913, § 8203; S.L. 1915, ch. 153, § 1; 1925 Supp., § 8203; S.L. 1931, ch. 143, § 1; R.C. 1943, § 32-1502; S.L. 1963, ch. 325, § 1; 1993, ch. 341, § 1.

Cross-References.

Airport authority, exercise of power by, see N.D.C.C. § 2-06-08.

Bank of North Dakota, industrial commission powers, see N.D.C.C. § 6-09-02.

Board of flood irrigation powers, see N.D.C.C. § 61-12-20.

Drainage projects, see N.D.C.C. §§ 61-21-19, 61-21-64.

Garrison diversion conservancy district, powers, see N.D.C.C. § 61-24-08.

Highway commission powers, see N.D.C.C. § 24-01-18 et seq.

Housing authority powers, see N.D.C.C. § 23-11-17.

Irrigation districts, see N.D.C.C. §§ 61-07-03, 61-07-16, 61-07-20.

Irrigation projects, see N.D.C.C. § 61-12-20.

Municipality, condemnation by, see N.D.C.C. § 40-22-05.

Municipal power agencies, condemnation power, see N.D.C.C. § 40-33.2-06.

Relocation Assistance, see N.D.C.C. ch. 54-01.1.

School lands, see N.D.C.C. ch. 15-09.

Sewers and sewage treatment plants, exercise of power for, see N.D.C.C. § 40-34-15.

Special improvements, municipal power, see N.D.C.C. § 40-22-05.

State may acquire title, see N.D.C.C. N.D.C.C. §§ 54-01-04, 54-01-05.

Streets and alleys, exercise of power for, see N.D.C.C. § 40-39-02.

Validation of acts of county commissioners and state highway commission, see N.D.C.C. § 1-06-02.

Water commission powers, see N.D.C.C. §§ 61-02-22, 61-02-23.

Water conservation commission powers, see N.D.C.C. §§ 61-02-22, 61-02-23.

Water, exercise of power for use of, see N.D.C.C. § 61-01-04.

Notes to Decisions

Commercial Growth.

The stimulation of commercial growth and removal of economic stagnation sought by N.D.C.C. ch. 40-58 are objectives that satisfy the public use and purpose requirement of N.D. Const. Art. I, § 16 and U.S. Const. Amend. V. City of Jamestown v. Leevers Supermarkets, 552 N.W.2d 365, 1996 N.D. LEXIS 191 (N.D. 1996).

Construction of Statute.

The mere fact that a projected use falls within one of the categories of this section is not enough to render it a public use within the meaning of the state constitution; where the existence of a public use is put in issue, its determination is dependent upon the facts and circumstances of the case and may properly be adjudicated. Square Butte Elec. Coop. v. Hilken, 244 N.W.2d 519, 1976 N.D. LEXIS 233 (N.D. 1976).

District court erred in dismissing a public utility’s eminent domain action because the proposed pipeline was an authorized use, the court’s consideration of the railroad customer’s preference for gas by pipeline to heat its railroad switch misapplied the law, the necessity inquiry was the necessity of the utility, not that of the railroad, the district court substituted its judgment for that of the utility, and the landowner did not establish that the utility acted in bad faith, grossly abused its discretion, or committed fraud in determining whether its chosen route across his property was reasonably suitable in terms of the greatest public benefit and the least private injury. Montana-Dakota Utils. Co. v. Behm, 2019 ND 139, 927 N.W.2d 865, 2019 N.D. LEXIS 139 (N.D.), cert. denied, — U.S. —, 140 S. Ct. 521, 205 L. Ed. 2d 335, 2019 U.S. LEXIS 7034 (U.S. 2019).

Gravel.

A county exercising the power of eminent domain to obtain gravel may not take the fee title. Sheridan County v. Davis, 61 N.D. 744, 240 N.W. 867, 1932 N.D. LEXIS 252 (N.D. 1932).

Power Transmission Line.

An easement for a power transmission line may be acquired by eminent domain. Otter Tail Power Co. v. Malme, 92 N.W.2d 514, 1958 N.D. LEXIS 92 (N.D. 1958).

Railroads.

Property necessary for the construction, maintenance, or operation of a railroad is property necessary for a public use. Northern Pac. Ry. v. Kreszeszewski, 17 N.D. 203, 115 N.W. 679 (N.D. 1908).

Restrictions.

The grant of power to a governmental subdivision to exercise the right of eminent domain should be strictly construed. Sheridan County v. Davis, 61 N.D. 744, 240 N.W. 867, 1932 N.D. LEXIS 252 (N.D. 1932).

School District.

A special school district has express statutory authority to acquire a school site and grounds by eminent domain. Board of Educ. v. Park Dist., 70 N.W.2d 899, 1955 N.D. LEXIS 111 (N.D. 1955).

Streets.

The question of the expediency or public necessity for extending street across railroad right of way was a question exclusively for the city council to determine, and its determination was conclusive. City of Grafton v. St. Paul M. & M. Ry., 16 N.D. 313, 113 N.W. 598 (1907).

Telephone System.

The erection of telephone poles in a street was a public use. Donovan v. Allert, 11 N.D. 289, 91 N.W. 441, 58 L.R.A. 775, 95 Am. St. Rep. 720 (1902), decided prior to the adoption of Art. 1, § 16 of the N.D. Const.

A telephone system is a public use, and to further its establishment the right of eminent domain may be exercised. Northwestern Tel. Exch. Co. v. Anderson, 12 N.D. 585, 98 N.W. 706, 1904 N.D. LEXIS 10 (N.D. 1904).

DECISIONS UNDER PRIOR LAW

Villages.

Fact that statute expressly empowered city councils to lay out and extend streets, by condemnation, across railroad rights of way and that there was no such express provision relating to villages did not indicate legislative intention to withhold like power from village trustees. Ashley v. Minneapolis, St. Paul, & Sault Ste. Marie Ry., 37 N.D. 147, 163 N.W. 727, 1917 N.D. LEXIS 84 (N.D. 1917).

Collateral References.

Eminent Domain 12-68.

26 Am. Jur. 2d, Eminent Domain, §§ 42 et seq.

29A C.J.S. Eminent Domain, §§ 27-61.

Off-street public parking facilities, 8 A.L.R.2d 373.

Spur track and the like as constituting a use for which railroad can validly exercise right of eminent domain, 35 A.L.R.2d 1326.

Oil and gas: compulsory pooling or unitization statute or ordinance requiring owners or lessees of oil and gas lands to develop their holdings as a single unit and the like, as taking private property for private use, 37 A.L.R.2d 434, 439.

Access to highway: power to condemn abutting owner’s right of access to limited access highway or street, 43 A.L.R.2d 1072.

Urban redevelopment by private enterprise, validity, construction, and effect, of statute authorizing eminent domain for, 44 A.L.R.2d 1414, 1439.

Cemetery, municipal power to condemn land for, 54 A.L.R.2d 1322.

Underground gas storage: condemnation of underground areas for storage of natural gas reduced to possession, 94 A.L.R.2d 543, 548.

Excess condemnation: right to condemn property in excess of needs for a particular public purpose, 6 A.L.R.3d 297.

Substitute condemnation: power to condemn property or interest therein to replace other property taken for public use, 20 A.L.R.3d 862.

Other public agencies: power of eminent domain as between state and subdivision or agency thereof, or as between different subdivisions or agencies themselves, 35 A.L.R.3d 1293.

Abutting owner’s right to damages for limitation of access caused by conversion of conventional road into limited-access highway, 42 A.L.R.3d 13.

Measure and elements of damage for limitation of access caused by conversion of conventional road into limited access highway, 42 A.L.R.3d 148.

Salting for snow removal as taking or damaging abutting property for eminent domain purposes, 64 A.L.R.3d 1239.

32-15-03. What estate subject to be taken.

The following is a classification of the estates and rights in lands subject to be taken for public use:

  1. A fee simple, when taken for public buildings or grounds, for permanent buildings, for reservoirs and dams and permanent flooding occasioned thereby, for an outlet for a flow or a place for the deposit of debris or tailings of a mine, or for the construction of parking lots and facilities for motor vehicles.
  2. An easement, when taken for highway purposes or for any other use except, upon a proper allegation of the need therefor, the court shall have the power to order that a fee simple be taken for such other use.
  3. The right of entry upon and occupation of lands and the right to take therefrom such earth, gravel, stones, trees, and timber as may be necessary for a public use.

However, the provisions of this section shall not authorize the state or any political subdivision thereof to obtain any rights or interest in or to the oil, gas, or fluid minerals on or underlying any estate or right in lands subject to be taken for a public use.

Source:

R.C. 1895, § 5957; R.C. 1899, § 5957; R.C. 1905, § 7576; C.L. 1913, § 8204; R.C. 1943, § 32-1503; S.L. 1953, ch. 212, § 1; 1957 Supp., § 32-15031; S.L. 1959, ch. 267, § 1.

Note.

The insertion in subsection 2 of the words “for highway purposes or” in effect combined the provisions of section 32-15-03.1 into the provisions of this section.

Cross-References.

Vesting of title in state for highway purposes on payment into court, see N.D.C.C. § 24-01-22.

Notes to Decisions

Easement.

A county exercising the power of eminent domain to obtain gravel may not take the fee title. Sheridan County v. Davis, 61 N.D. 744, 240 N.W. 867, 1932 N.D. LEXIS 252 (N.D. 1932).

One conveying an easement in farm land to the county for highway purposes only, which is all that the county could have condemned, has the right to use for agricultural purposes that portion of the land not in use for travel purposes without an express reservation of such right. Otter Tail Power Co. v. Von Bank, 72 N.D. 497, 8 N.W.2d 599, 1942 N.D. LEXIS 148 (N.D. 1942).

Since maintenance and repair of an electric power transmission line are essential to the efficient operation thereof, an easement for the location of the line carries with it, as an incident to the full, fair, reasonable and proper use thereof, the right of ingress and egress. Otter Tail Power Co. v. Malme, 92 N.W.2d 514, 1958 N.D. LEXIS 92 (N.D. 1958).

Fee Simple.

A special school district acquires a fee simple title to its schoolhouse sites. Board of Educ. v. Park Dist., 70 N.W.2d 899, 1955 N.D. LEXIS 111 (N.D. 1955).

City exercising its authority to create pedestrian malls pursuant to N.D.C.C. § 40-62-01 must initiate eminent domain proceedings to compensate abutting property owners since those owners are presumed to hold fee ownership in the street. City of Fargo v. Fahrlander, 199 N.W.2d 30, 1972 N.D. LEXIS 155 (N.D. 1972).

State Highway Condemnations.

This section is inapplicable in the cases of taking of land by the state by eminent domain for highway purposes. Wallentinson v. Williams County, 101 N.W.2d 571, 1960 N.D. LEXIS 55 (N.D. 1960).

Statutory Authority.

Where an estate or right in land, other than those provided for in this section, is sought to be taken by eminent domain, specific statutory authority therefor must appear. Board of Educ. v. Park Dist., 70 N.W.2d 899, 1955 N.D. LEXIS 111 (N.D. 1955).

Strict Construction.

The grant of power to a governmental subdivision to exercise the right of eminent domain should be strictly construed. Sheridan County v. Davis, 61 N.D. 744, 240 N.W. 867, 1932 N.D. LEXIS 252 (N.D. 1932).

Telegraph Lines on Railroad Property.

Eminent domain may be used to secure easement for placing of telegraph lines on property of railroad, where such lines will not interfere with the railroad’s operations. St. Paul, M. & M. R. Co. v. Western U. Tel. Co., 118 F. 497, 1902 U.S. App. LEXIS 4550 (8th Cir. Minn. 1902).

Collateral References.

Eminent Domain 44-52, 317-319.

26 Am. Jur. 2d, Eminent Domain, §§ 87 et seq.

29A C.J.S. Eminent Domain, §§ 56-61, 417-419.

Promissory statements of condemner as to character of use or undertakings to be performed by it, extent of rights acquired by taking as affected by, 7 A.L.R.2d 364, 381.

Insurable interest of property owner, condemnation proceedings as affecting, 29 A.L.R.2d 888.

Condemnor’s acquisition of, or right to, minerals under land taken in eminent domain, 36 A.L.R.2d 1424.

Real estate taxes, rights in respect of, 45 A.L.R.2d 522.

Risk of loss: who, as between condemnor and condemnee, bears risk of loss or destruction of property occurring after commencement but before completion of eminent domain proceedings, 89 A.L.R.2d 1076.

32-15-03.1. Declaration of legislative intent. [Repealed]

Repealed by omission from this code.

Note.

In subsection 2 of section 32-15-03 the words “for highway purposes or” have been inserted, and this in effect combined the provisions of this section with the provisions of section 32-15-03.

32-15-03.2. Termination of estates greater than an easement.

No transfer to the state of North Dakota or any of its political subdivisions of property for highway purposes shall be deemed to include any interest greater than an easement, and where any greater estate shall have been so transferred, the same is hereby reconveyed to the owner from which such land was originally taken, or to the heirs, executors, administrators, or assigns of such owner. Such reconveyance shall be subject to any existing contracts or agreements covering such property, and all rights and benefits thereof shall accrue to the grantee.

Source:

S.L. 1953, ch. 212, § 2; R.C. 1943, 1957 Supp., § 32-15032.

Cross-References.

Acquisition of property and property rights for controlled-access facilities, see N.D.C.C. § 24-01-32.

Right of way and materials may be obtained by purchase or eminent domain, see N.D.C.C. § 24-01-18.

Vesting of title in state for highway purposes on payment into court, see N.D.C.C. § 24-01-22.

Notes to Decisions

State’s Interest in Roads.

Court properly granted summary judgment to an insurer in a declaratory judgment action where a semi-truck was not covered under a farmer’s policy because an exclusion contained limited exceptions which did not provide coverage for motor vehicles on public roads or highways. The semi-truck was indisputably driven on public roads and it was irrelevant whether the state’s interest in highway abutting insured’s property was treated as an easement or a fee interest, as the collision occurred more than two miles from the farm, and the driver had to cross several strips of highway that did not abut land owned by insured. The language of the policy precluded coverage for the semi-truck because it was designed for travel on public roads and subject to motor vehicle registration. Nationwide Mut. Ins. Cos. v. Lagodinski, 2004 ND 147, 683 N.W.2d 903, 2004 N.D. LEXIS 279 (N.D. 2004).

32-15-04. What property may be taken.

The private property which may be taken under this chapter includes:

  1. All real property belonging to any person.
  2. Lands belonging to this state or to any county, city, or park district, not appropriated to some public use.
  3. Property appropriated to public use, but such property shall not be taken unless for a more necessary public use than that to which it has been appropriated already, and use by a public corporation shall be deemed a more necessary public use than use for the same purpose by a private corporation or limited liability company, and whenever a right of way shall have been taken and the person, firm, corporation, or limited liability company taking such right of way shall fail or neglect for five years to use the same for the purpose to which it had been appropriated, the attempt by another person, firm, corporation, or limited liability company to appropriate such right of way shall be considered a more necessary public use.
  4. Franchises for toll roads, toll bridges, ferries, and all other franchises, but such franchises shall not be taken unless for free highways, railroads, or other more necessary public use.
  5. Any system of waterworks, electric light and power plant, wells, reservoirs, pipelines, machinery, franchises, and all other property of any character whatsoever comprising a waterworks system or an electric light and power system.
  6. All rights of way for any and all the purposes mentioned in section 32-15-02 and any and all structures and improvements thereon, and the lands held or used in connection therewith, shall be subject to be connected with, crossed, or intersected by any other right of way or improvement or structure thereon. They also shall be subject to a limited use in common with the owner thereof when necessary, but such uses, crossings, intersections, and connections shall be made in the manner most compatible with the greatest public benefit and the least private injury.
  7. All classes of private property not enumerated may be taken for public use when such taking is authorized by law.

Source:

R.C. 1895, § 5958; R.C. 1899, § 5958; S.L. 1901, ch. 75, § 1; R.C. 1905, § 7577; C.L. 1913, § 8205; S.L. 1921, ch. 63, § 1; 1925 Supp., § 8205; R.C. 1943, § 32-1504; S.L. 1993, ch. 54, § 106.

Notes to Decisions

Native American Land.

Because a condemnation action is strictly in rem, and in personam jurisdiction is not required, Indian tribe’s defense of sovereign immunity was of no avail. Further, the Federal Nonintercourse Act, 25 USCS 177, did not apply to land which a tribe had purchased in fee, which was located hundreds of miles from its reservation, which had never been held in trust for the tribe, and which had been privately owned for over 100 years. Cass County Joint Water Res. Dist. v. 1.43 Acres of Land, 2002 ND 83, 643 N.W.2d 685, 2002 N.D. LEXIS 100 (N.D. 2002), overruled in part, Upper Skagit Indian Tribe v. Lundgren, — U.S. —, 138 S. Ct. 1649, 200 L. Ed. 2d 931, 2018 U.S. LEXIS 3085 (U.S. 2018).

Collateral References.

Eminent Domain 44-52.

26 Am. Jur. 2d, Eminent Domain, §§ 87 et seq.

29A C.J.S. Eminent Domain, §§ 56-61.

Spur track and the like, condemnation by railroad of land within street for purpose of, 35 A.L.R.2d 1326.

Abutting owner’s right to damages for limitation of access caused by conversion of conventional road into limited-access highway, 43 A.L.R.2d 1072; 42 A.L.R.3d 13; 42 A.L.R.3d 148.

Highway access: power to condemn abutting owner’s right of access to limited access highway or street, 43 A.L.R.2d 1072.

Cemetery, condemnation for cemetery purposes of land already in use as, 54 A.L.R.2d 1322.

Other public agencies: power of eminent domain as between state and subdivision or agency thereof, or as between different subdivisions or agencies themselves, 35 A.L.R.3d 1293.

Measure and elements of damage for limitation of access caused by conversion of conventional road into limited-access highway, 42 A.L.R.3d 148.

Validity of Extraterritorial Condemnation by Municipality. 44 A.L.R.6th 259.

32-15-05. What must appear before property taken.

Before property can be taken it must appear:

  1. That the use to which it is to be applied is a use authorized by law.
  2. That the taking is necessary to such use.
  3. If already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use.

Source:

R.C. 1895, § 5959; R.C. 1899, § 5959; R.C. 1905, § 7578; C.L. 1913, § 8206; R.C. 1943, § 32-1505.

Notes to Decisions

Necessary Public Use.

Necessity for condemnation is a judicial question triable by the court. Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570 (1896), distinguished, City of Grafton v. St. Paul M. & M. Ry., 16 N.D. 313, 113 N.W. 598, 22 L.R.A. (n.s.) 1 (1907), City of Grafton v. S. Paul, M. & M. Ry., 16 N.D. 313, 113 N.W. 598, 1907 N.D. LEXIS 59 (N.D. 1907).

Use of land by special school district for school purposes was a more necessary public use than use for a park. Board of Educ. v. Park Dist., 70 N.W.2d 899, 1955 N.D. LEXIS 111 (N.D. 1955).

Necessity.

A jury’s role in both an eminent domain and a road closure proceeding is limited to a determination of a landowner’s damages; therefore, it was not error for landowners to be prevented from presenting evidence to the jury on the necessity for a road closure as the issue of necessity for a particular taking ultimately remains a question for a court to review. Gissel v. Kenmare Township, 512 N.W.2d 470, 1994 N.D. LEXIS 42 (N.D. 1994).

Supreme Court concluded the district court did not err in dismissing attempted appeals from a city's resolutions of necessity. Further, the Supreme Court agreed with the city's assertion that affirming the dismissals did not extinguish the property owners' ability to challenge the requirements of N.D.C.C. ch. 32-15 in the eminent domain proceedings pending in the district court. Brandt v. City of Fargo, 2018 ND 26, 905 N.W.2d 764, 2018 N.D. LEXIS 28 (N.D. 2018).

District court erred in dismissing a public utility’s eminent domain action because the proposed pipeline was an authorized use, the court’s consideration of the railroad customer’s preference for gas by pipeline to heat its railroad switch misapplied the law, the necessity inquiry was the necessity of the utility, not that of the railroad, the district court substituted its judgment for that of the utility, and the landowner did not establish that the utility acted in bad faith, grossly abused its discretion, or committed fraud in determining whether its chosen route across his property was reasonably suitable in terms of the greatest public benefit and the least private injury. Montana-Dakota Utils. Co. v. Behm, 2019 ND 139, 927 N.W.2d 865, 2019 N.D. LEXIS 139 (N.D.), cert. denied, — U.S. —, 140 S. Ct. 521, 205 L. Ed. 2d 335, 2019 U.S. LEXIS 7034 (U.S. 2019).

Public Necessity.

District court has jurisdiction to determine if proposed taking by an airport authority is a public necessity. Oakes Mun. Airport Auth. v. Wiese, 265 N.W.2d 697, 1978 N.D. LEXIS 233 (N.D. 1978).

Res Judicata.

A prior unsuccessful attempt to acquire property for a public purpose does not bar the commencement of a subsequent action to acquire the same property from the same parties where the subsequent action is brought in good faith, and there has been a change of circumstances such that the action is not merely an attempt to relitigate identical issues based upon identical factors for consideration. Oakes Mun. Airport Auth. v. Wiese, 265 N.W.2d 697, 1978 N.D. LEXIS 233 (N.D. 1978).

Taking Held Proper.

Easements for a public roadway and for utilities, water, sewer, and cable television were necessary for a valid public use, and thus the taking was proper. City of Medora v. Golberg, 1997 ND 190, 569 N.W.2d 257, 1997 N.D. LEXIS 228 (N.D. 1997).

Collateral References.

Eminent Domain 12-15, 54-58.

29A C.J.S. Eminent Domain, §§ 27-29, 64-69.

Spur track and the like as constituting a use for which railroad can validly exercise power of eminent domain, 35 A.L.R.2d 1326.

Urban redevelopment: validity, construction, and effect of statutes providing for urban redevelopment by private enterprise, with respect to inclusion of property not substandard, 44 A.L.R.2d 1414, 1439.

Cemetery purposes, necessity of taking for, 54 A.L.R.2d 1322.

Public school, amount of property which may be condemned for, 71 A.L.R.2d 1071.

Excess condemnation: right to condemn property in excess of needs for a particular public purpose, 6 A.L.R.3d 297.

Substitute condemnation: power to condemn property or interest therein to replace other property taken for public use, 20 A.L.R.3d 862.

Authority of state, municipality, or other governmental entity to accept late bids for public works contracts, 49 A.L.R.5th 747.

32-15-06. Entry for making surveys.

In all cases when land is required for public use, the person or corporation, or the person’s or corporation’s agents, in charge of such use may survey and locate the same, but it must be located in the manner which will be compatible with the greatest public benefit and the least private injury and subject to the provisions of section 32-15-21. Whoever is in charge of such public use may enter upon the land and make examinations, surveys, and maps thereof, and such entry constitutes no claim for relief in favor of the owner of the land except for injuries resulting from negligence, wantonness, or malice.

Source:

R.C. 1895, § 5960; R.C. 1899, § 5960; R.C. 1905, § 7579; C.L. 1913, § 8207; R.C. 1943, § 32-1506; S.L. 1985, ch. 82, § 77.

Notes to Decisions

Foreign Electric Cooperative.

Foreign electric cooperative was an entity that could seek eminent domain as a qualifying foreign cooperative pursuant to N.D.C.C. §§ 10-13-03(7), 10-15-52. Because N.D.C.C. § 10-15-60 does not restrict the powers afforded under § 10-15-52 to electric cooperatives, which may operate under the general law governing cooperatives as provided in N.D.C.C. § 10-13-01, the district courts properly granted under N.D.C.C. § 32-15-06 the cooperative’s petitions for access to properties along the route of a proposed power transmission line to conduct testing and surveys. Minnkota Power Coop. v. Anderson, 2012 ND 105, 817 N.W.2d 325, 2012 N.D. LEXIS 105 (N.D. 2012).

Good Faith.

If there has been a carefully considered good faith selection of a location by a condemning authority, courts generally will not interfere with the actual location of the property condemned. City of Medora v. Golberg, 1997 ND 190, 569 N.W.2d 257, 1997 N.D. LEXIS 228 (N.D. 1997).

Preemption.

In a condemnation case, the owners’ claims that a company violated state procedures relating to a duty to negotiate, appraisals, and compensation was preempted by a federal rule that afforded a uniform procedure for all condemnation cases invoking the national power of eminent domain. Alliance Pipeline L.P. v. 4.360 Acres of Land, 746 F.3d 362, 2014 U.S. App. LEXIS 5388 (8th Cir. N.D.), cert. denied, 574 U.S. 873, 135 S. Ct. 245, 190 L. Ed. 2d 136, 2014 U.S. LEXIS 6138 (U.S. 2014).

Requirements for Application for Survey.

In an application for a permit to enter upon private property for the purpose of making a survey and testing soil, plaintiff was required to show only that it was in the category of persons entitled to seek eminent domain, and was not required to prove at that stage of the proceedings that eminent domain was proper, justified, and necessary. Square Butte Elec. Coop. v. Dohn, 219 N.W.2d 877, 1974 N.D. LEXIS 184 (N.D. 1974).

Pipeline company seeking a court order for examinations and surveys was required to show only that it was entitled to seek eminent domain, which it was, and did not have to show public benefit; moreover, the district court had subject-matter jurisdiction to issue the order. Alliance Pipeline L.P. v. Smith, 2013 ND 117, 833 N.W.2d 464, 2013 N.D. LEXIS 131 (N.D. 2013).

Scope.

District court order granting a water resource district a right of entry onto the landowners’ properties was reversed where a prior order afforded the district 16 and a half months to perform examination and surveys for a flood diversion project, and placement of survey monuments on the landowners’ properties for as long as three years was not an innocuous entry and would have seriously impinged upon or impair the right to the use and enjoyment of their properties. The physical occupation of the three-year duration went beyond the minimally invasive examination and testing permitted under N.D.C.C. § 32-15-06. Cass Cty. Joint Water Res. Dist. v. Aaland, 2021 ND 57, 956 N.W.2d 395, 2021 N.D. LEXIS 59 (N.D. 2021).

Selection of Location.

When the necessity for the exercise of the power of eminent domain is proved or admitted, much latitude is given to the corporation, vested with the power, in the selection of the site or location to be taken for public use, and generally, where there has been a carefully considered, good faith selection of a location by the corporation or its officers, the courts will not interfere. Northern States Power Co. v. Effertz, 94 N.W.2d 288, 1958 N.D. LEXIS 111 (N.D. 1958).

Takings.

District court properly granted a water resource district permission to enter the landowners' property for surveys and examination associated with a proposed flood control project because an eminent domain summons and complaint were not required where it was exempt from the Rules of Civil Procedure and was preliminary to condemnation, removing one to two pints of soil for testing and replacing the soil after testing did not constitute a compensable taking, and the landowners were not entitled to a jury trial where no evidence of injuries resulting from negligence, wantonness, or malice existed. Cass Cnty. Joint Water Res. Dist. v. Brakke (In re 2015 Application for Permit to Enter Land for Surveys & Examination Associated with a Proposed N.D. Diversion & Associated Structures), 2016 ND 165, 883 N.W.2d 844, 2016 N.D. LEXIS 165 (N.D. 2016).

Collateral References.

Preliminary survey or examination, right to enter land for, 29 A.L.R.3d 1104.

32-15-06.1. Duty to negotiate — Just compensation — Appraisals.

  1. A condemnor shall make every reasonable and diligent effort to acquire property by negotiation.
  2. Before initiating negotiations for the purchase of property, the condemnor shall establish an amount which it believes to be just compensation therefor and promptly shall submit to the owner an offer to acquire the property for the full amount so established. The amount shall not be less than the condemnor’s approved appraisal or written statement and summary of just compensation for the property.
  3. In establishing the amount believed to be just compensation, the condemnor shall disregard any decrease or increase in the fair market value of the property caused by the project for which the property is to be acquired or by the reasonable likelihood that the property will be acquired for that project, other than a decrease due to physical deterioration within the reasonable control of the owner.
  4. The condemnor shall provide the owner of the property with a written appraisal, if one has been prepared, or if one has not been prepared, with a written statement and summary, showing the basis for the amount it established as just compensation for the property. If appropriate, the compensation for the property to be acquired and for the damages to remaining property shall be separately stated.

Source:

S.L. 1981, ch. 353, § 1.

Notes to Decisions

Cost Shifting.

The generalized cost-shifting provisions of N.D.R.Civ.P. 68(a) are inapplicable to eminent domain proceedings. Gissel v. Kenmare Township, 512 N.W.2d 470, 1994 N.D. LEXIS 42 (N.D. 1994).

Effort to Negotiate.

Trial court’s finding city made reasonable and diligent efforts to acquire property by negotiation was not clearly erroneous, where the record demonstrated both city and developer had ongoing negotiations with property owners and they agreed on the purchase price, but negotiations failed over a tax issue. City of Jamestown v. Leevers Supermarkets, 552 N.W.2d 365, 1996 N.D. LEXIS 191 (N.D. 1996).

Measure of Damages.

Any enhanced value to the property condemned caused by the development project could not be properly considered in assessing condemnation damages. City of Jamestown v. Leevers Supermarkets, 552 N.W.2d 365, 1996 N.D. LEXIS 191 (N.D. 1996).

Condemnation damages award was not clearly erroneous because (1) landowners did not present sufficient evidence that the property’s fair market value, given the best and highest use found, was greater than the award, and (2) the court did not rely on evidence of project influence on valuation. Cass Cty. Joint Water Res. Dist. v. Erickson, 2018 ND 228, 918 N.W.2d 371, 2018 N.D. LEXIS 236 (N.D. 2018).

Preemption.

In a condemnation case, two owners’ claims that a company violated state procedures relating to a duty to negotiate, appraisals, and compensation was preempted by a federal rule that afforded a uniform procedure for all condemnation cases invoking the national power of eminent domain. Alliance Pipeline L.P. v. 4.360 Acres of Land, 746 F.3d 362, 2014 U.S. App. LEXIS 5388 (8th Cir. N.D.), cert. denied, 574 U.S. 873, 135 S. Ct. 245, 190 L. Ed. 2d 136, 2014 U.S. LEXIS 6138 (U.S. 2014).

32-15-06.2. Disclosures.

The condemnor, upon request, shall provide the property owner or the owner’s representative with the names of at least ten neighboring property owners to whom offers are being made, or a list of all offerees if fewer than ten owners are affected. A current and relevant map showing all neighboring property affected by a project shall also be provided to the property owner. Upon request by an owner or the owner’s representative, the condemnor shall provide the names of any other property owners within that county and adjacent counties whose property may be taken for the project. The owner or the owner’s representative shall have the right, upon request, to examine any maps in the possession of the condemnor showing property affected by the project. The owner or the owner’s representative may obtain copies of such maps by tendering to the condemnor the reasonable and necessary costs of preparing copies.

Source:

S.L. 1981, ch. 353, § 2.

32-15-07. Proceedings by civil action. [Repealed]

Repealed by omission from this code.

32-15-08. Form of summons — When served. [Repealed]

Repealed by omission from this code.

32-15-09. Service by publication. [Repealed]

Repealed by omission from this code.

32-15-10. Copy of summons served through mails. [Repealed]

Repealed by omission from this code.

32-15-11. Service complete, when. [Repealed]

Repealed by omission from this code.

32-15-12. When note of issue filed. [Repealed]

Repealed by omission from this code.

32-15-13. Jury may be demanded.

Whenever in an action brought under the provisions of this chapter an issue is formed whereby it appears that the attendance of a jury will be necessary to assess the damages in such action, the plaintiff therein may apply to the judge of the district court where the same is pending for an order requiring a jury to be summoned to assess the damages in such action. Thereupon the judge shall issue an order to the clerk of said court requiring a jury to be summoned, and in such order shall specify the number of jurors to be drawn, the place where they are to appear, and the time when they shall come, which shall be not less than eight days nor more than thirty days from the date thereof.

Source:

S.L. 1901, ch. 74, § 1, subs. 6; R.C. 1905, § 7586; C.L. 1913, § 8214; R.C. 1943, § 32-1513.

Notes to Decisions

Determination of Damages.

In an action to condemn an easement for a right of way for an electric transmission line, the only question for the jury to determine was that of damages. Otter Tail Power Co. v. Von Bank, 72 N.D. 497, 8 N.W.2d 599, 1942 N.D. LEXIS 148 (N.D. 1942).

It is the duty of the court to proceed with the assessment of damages as rapidly as the procedure provided will permit, and the court has no power to stay such proceedings pending the final determination of other issues in the condemnation proceeding. State ex rel. Northern States Power Co. v. Teigen, 80 N.W.2d 110, 1956 N.D. LEXIS 165 (N.D. 1956).

The only function of a jury in eminent domain is to assess the damages. City of Minot v. Minot Hwy. Ctr., Inc., 120 N.W.2d 597 (N.D. 1963), distinguished, Hoffman v. Berry, 139 N.W.2d 529 (N.D. 1966) and Mitzel v. Schatz, 167 N.W.2d 519, 1968 N.D. LEXIS 86 (N.D. 1968).

Effect of Demand for Jury.

For the purposes of removal to a federal court the demand for a jury is equivalent to filing of an answer, and where petition for removal has been filed more than thirty days after demand, the case will be remanded to the state court. Minneapolis, St. P. & S. Ste. M. R. Co. v. Nestor, 50 F. 1, 1892 U.S. App. LEXIS 1687 (C.C.D.N.D. 1892).

Stay of Compensation Trial.

This section requires the court to proceed rapidly and to finally determine the issue of damages, and whenever a jury is necessary to assess the damages the court should proceed without delay to summon the required number of jurors to be drawn; thus, district court’s stay of compensation trial pending appeal on necessity of taking was error. City of Williston v. Beede, 289 N.W.2d 235, 1980 N.D. LEXIS 211 (N.D. 1980).

Collateral References.

Eminent Domain 214.

29A C.J.S. Eminent Domain, § 291.

32-15-14. When sheriff’s fees to be advanced by plaintiff — Surety for jury fees. [Repealed]

Repealed by S.L. 1981, ch. 354, § 1.

32-15-15. Note of issue, filing. [Repealed]

Repealed by omission from this code.

32-15-16. Special term of court to hear issue.

The court shall sit at a special term to hear the case according to law and the practice of the court, and shall have the same power to complete the jury as is now provided by law, and the pay of such jurors, and the penalty for failure or refusal to appear, shall be the same as in other cases.

Source:

S.L. 1901, ch. 74, § 1, subs. 8; R.C. 1905, § 7589; C.L. 1913, § 8217; R.C. 1943, § 32-1516.

Cross-References.

Special term to be called to try condemnation by municipality, see N.D.C.C. § 40-22-05.

32-15-17. Issues tried at any term of court.

The trial of any action under this chapter may be had at any general, special, or adjourned term of district court, held or called in the county in which such action may be pending, and such action may be tried at any such term. If issue is not joined prior to the commencement of any regular, special, or adjourned term, the plaintiff nevertheless may require said cause to be tried on such day thereof as the court may order, but plaintiff shall serve upon the opposite party, or parties, a seven days’ notice of trial, specifying the date of trial, as fixed by order of the court.

Source:

S.L. 1901, ch. 74, § 1, subs. 9; R.C. 1905, § 7590; C.L. 1913, § 8218; R.C. 1943, § 32-1517.

Notes to Decisions

Notice.

Notice of trial mailed by the clerk of the court seven days before trial date is not adequate notice. Basin Elec. Power Coop. v. Lang, 221 N.W.2d 719, 1974 N.D. LEXIS 169, 1974 N.D. LEXIS 178 (N.D. 1974).

32-15-18. What complaint must contain.

The complaint must contain:

  1. The name of the corporation, association, commission, or person in charge of the public use for which the property is sought, who must be styled plaintiff.
  2. The names of all owners and claimants of the property, if known, or a statement that they are unknown, who must be styled defendants.
  3. A statement of the right of the plaintiff.
  4. If a right of way is sought, the complaint must show the location, general route, and termini, and must be accompanied with a map thereof so far as the same is involved in the action or proceeding.
  5. A description of each piece of land sought to be taken and whether the same includes the whole or only a part of an entire parcel or tract.

Source:

R.C. 1895, § 5962; R.C. 1899, § 5962; R.C. 1905, § 7592; C.L. 1913, § 8220; R.C. 1943, § 32-1518.

Notes to Decisions

Description of Land.

In a proceeding to condemn land or an easement therein, the plaintiff must describe the land or easement in the complaint with accuracy and certainty. Otter Tail Power Co. v. Von Bank, 72 N.D. 497, 8 N.W.2d 599, 1942 N.D. LEXIS 148 (N.D. 1942).

Subsection 4 of this section has no application to an incidental right arising from the taking of a specific easement. Otter Tail Power Co. v. Malme, 92 N.W.2d 514, 1958 N.D. LEXIS 92 (N.D. 1958).

Parties.

The word “person” in the statute was not designed to embrace a person acting as a receiver for a railroad corporation. Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570, 1896 N.D. LEXIS 30 (N.D. 1896).

In an action to condemn property for railroad purposes, the railroad corporation was a necessary party plaintiff, although in the hands of a receiver, and it was proper to amend the summons and pleadings by inserting its name as plaintiff in place of the receiver. Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570, 1896 N.D. LEXIS 30 (N.D. 1896).

Owners as indicated by the record title were proper parties in eminent domain proceeding. Basin Elec. Power Coop. v. Miller, 310 N.W.2d 715, 1981 N.D. LEXIS 327 (N.D. 1981).

Sufficiency of Complaint.

A complaint in an eminent domain proceeding need not allege that provisions for payment of award have been made. City of Lidgerwood v. Michalek, 12 N.D. 348, 97 N.W. 541, 1903 N.D. LEXIS 50 (N.D. 1903).

In an action by a city to condemn for street purposes a strip of land across railroad right of way, public necessity for such street need not be alleged or proved. City of Grafton v. St. Paul M. & M. Ry., 16 N.D. 313, 113 N.W. 598 (1907).

Collateral References.

Eminent Domain 189-191.

27 Am. Jur. 2d, Eminent Domain, §§ 465-472.

29A C.J.S. Eminent Domain, §§ 247-259.

Promissory statements of condemner as to character of use or undertakings to be performed by it, propriety of pleading, 7 A.L.R.2d 364, 381.

32-15-19. Joinder, consolidation, and separation of proceedings.

All parcels of land lying in the county and required for the same public use may be included in the same or separate proceedings, at the option of the plaintiff, but the court may consolidate or separate them to suit the convenience of parties.

Source:

R.C. 1895, § 5962; R.C. 1899, § 5962; R.C. 1905, § 7592; C.L. 1913, § 8220; R.C. 1943, § 32-1519.

32-15-20. Who may defend.

All persons in occupation of, or having or claiming an interest in, any of the property described in the complaint or in the damages for the taking thereof, though not named, may appear, plead, and defend, each in respect to such person’s own property or interest, or that claimed by such person, in like manner as if named in the complaint.

Source:

R.C. 1895, § 5963; R.C. 1899, § 5963; R.C. 1905, § 7593; C.L. 1913, § 8221; R.C. 1943, § 32-1520.

Collateral References.

Eminent Domain 64, 177, 178.

27 Am. Jur. 2d, Eminent Domain, § 459.

29A C.J.S. Eminent Domain, §§ 70, 230-232.

Right of adjoining landowners to intervene in condemnation proceedings on ground that they might suffer consequential damage, 61 A.L.R.2d 1292.

32-15-21. Power of court.

  1. The court shall have power:
    1. To regulate and determine the place and manner of making connections and crossings, or of enjoying the common use mentioned in subsection 6 of section 32-15-04.
    2. To hear and determine all adverse or conflicting claims to the property sought to be condemned and to the damages for the property.
    3. To determine the respective rights of different parties seeking condemnation of the same property.
  2. Notwithstanding any other provision of law, if a route permit is required under chapter 49-22 or 49-22.1, the court may order the taking by eminent domain conditioned on the receipt of the route permit.

Source:

R.C. 1895, § 5964; R.C. 1899, § 5964; R.C. 1905, § 7594; C.L. 1913, § 8222; R.C. 1943, § 32-1521; 2013, ch. 364, § 1; 2017, ch. 328, § 3, eff July 1, 2017.

Effective Date.

The 2013 amendment of this section by section 1 of chapter 364, S.L. 2013 became effective August 1, 2013.

32-15-22. Assessment of damages.

The jury, or court, or referee, if a jury is waived, must hear such legal testimony as may be offered by any of the parties to the proceedings and thereupon must ascertain and assess:

  1. The value of the property sought to be condemned and all improvements thereon pertaining to the realty and of each and every separate estate or interest therein. If it consists of different parcels, the value of each parcel and each estate and interest therein shall be separately assessed.
  2. If the property sought to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned and the construction of the improvement in the manner proposed by the plaintiff.
  3. If the property, though no part thereof is taken, will be damaged by the construction of the proposed improvement, the amount of such damages.
  4. If the property is taken or damaged by the state or a public corporation, separately, how much the portion not sought to be condemned and each estate or interest therein will be benefited, if at all, by the construction of the improvement proposed by the plaintiff, and if the benefit shall be equal to the damages assessed under subsections 2 and 3, the owner of the parcel shall be allowed no compensation except the value of the portion taken, but if the benefit shall be less than the damages so assessed the former shall be deducted from the latter and the remainder shall be the only damages allowed in addition to the value of the portion taken.
  5. As far as practicable, compensation must be assessed separately for property actually taken and for damages to that which is not taken.

Source:

R.C. 1895, § 5965; R.C. 1899, § 5965; R.C. 1905, § 7595; C.L. 1913, § 8223; R.C. 1943, § 32-1522.

Notes to Decisions

Coal, Gravel, and Surface Land Valuation.

Court erred in allowing expert witness to separately establish values for coal, gravel, and surface land on condemned property, and then to aggregate these sums to reach a total figure representative of the fair market value; mineral deposits cannot be made the subject of a separate evaluation apart from the land and simply added to the market value of the land as additional compensation for the taking, but should instead be considered as factors which influence or enhance the fair market value of the land. Hultberg v. Hjelle, 286 N.W.2d 448, 1979 N.D. LEXIS 321 (N.D. 1979).

Common Use of Contiguous Parcels of Land.

Where plaintiffs owned one of two contiguous parcels in fee and were joint tenants with the husband’s parents in the other parcel, and the two parcels were operated as a unit, the value of the two units used together was a relevant and proper consideration in determining the value of the land taken from plaintiffs by condemnation and the amount of severance damages to the remainder of the unit wholly owned by plaintiffs. O'Connell v. Hjelle, 143 N.W.2d 251, 1966 N.D. LEXIS 158 (N.D. 1966).

Consequential Damages.

Subsection 3 of this section provides, in effect, for “consequential damages”, arising from injuries to other property not actually taken, caused by the construction of the public improvement. Little v. Burleigh County, 82 N.W.2d 603, 1957 N.D. LEXIS 118 (N.D. 1957).

This section specifically authorizes the payment for damages to property even though the property is not taken. Northern Pac. R.R. v. Morton County, 131 N.W.2d 557 (N.D. 1964).

Subsection 2 of this section authorizes the awarding of compensation, when property is taken, for both severance damages due to the taking and consequential damages not due to the taking, the consequential damages arising from the construction of the improvement. Sauvageau v. Hjelle, 213 N.W.2d 381, 1973 N.D. LEXIS 143 (N.D. 1973).

Subsection 3 of this section authorizes the awarding of compensation, when property is not taken, for consequential damages arising from injuries to property, though no part thereof is taken, which will be damaged by the construction of the proposed improvement. Sauvageau v. Hjelle, 213 N.W.2d 381, 1973 N.D. LEXIS 143 (N.D. 1973).

Owner of property left in a cul-de-sac may have the right to recover if he has sustained a special damage with respect to his property in excess of that sustained by the public generally. Guerard v. State, 220 N.W.2d 525, 1974 N.D. LEXIS 180 (N.D. 1974).

Property owner is entitled to recover compensation for consequential damages to his property caused by the construction of power transmission facilities upon the land of adjoining property owners if he has suffered an injury to his property different in kind from that suffered in common by the public. United Power Ass'n v. Heley, 277 N.W.2d 262, 1979 N.D. LEXIS 200 (N.D. 1979).

Determination of Amount.
—In General.

Compensation for property actually taken for public purposes, and damages for property not taken but injuriously affected, must be ascertained and assessed pursuant to the provisions of this section. Little v. Burleigh County, 82 N.W.2d 603, 1957 N.D. LEXIS 118 (N.D. 1957).

Ordinarily an award of compensation in a condemnation case will be sustained if the amount is within the limits testified to by witnesses, but where the award is so flagrantly against the weight of the evidence that it appears the jury was actuated by bias or prejudice, the award will be set aside. Northern States Power Co. v. Effertz, 94 N.W.2d 288, 1958 N.D. LEXIS 111 (N.D. 1958).

Subsection 5 of this section vests the courts with a discretion, in proper cases, to substitute another method that will ensure adequate compensation to the landowner. Northern States Power Co. v. Effertz, 94 N.W.2d 288, 1958 N.D. LEXIS 111 (N.D. 1958).

—Loss of Income.

Where the trial court’s findings were induced by its mistaken view of the law about business owners’ foreknowledge of highway project when they completed their purchase of the property, although there was some evidence to support the trial court’s findings that the loss of income may have been attributable to other causes, this evidence was more relevant to the amount of just compensation and a mistake had been made about whether the means of ingress and egress was substantially impaired. Boehm v. Backes, 493 N.W.2d 671, 1992 N.D. LEXIS 251 (N.D. 1992).

Drainage.

There is no violation of any constitutional provision in having damages to real estate resulting from the construction of a drain assessed by a jury and the benefits to the same property assessed by the drain commissioners. Ross v. Prante, 17 N.D. 266, 115 N.W. 833, 1908 N.D. LEXIS 30 (N.D. 1908).

In a condemnation proceeding by a railroad, defendants were entitled to receive for the taking of a strip of land a sufficient sum to compensate them for the actual value of the strip taken and for the damages, if any, which would accrue to the portion of the larger tract not sought to be condemned by reason of its severance from the strip taken, and the construction of a ditch thereon. Montana E. R. Co. v. Lebeck, 32 N.D. 162, 155 N.W. 648, 1915 N.D. LEXIS 64 (N.D. 1915).

Highways.

In proceedings to determine damages sustained by the owner of a farm as a result of the establishment of a highway, the owner was entitled to be paid the value of the parcel of land taken plus the damages which would accrue to the remainder of the farm by reason of its severance from the portion taken and the construction of the highway. Lineburg v. Sandven, 74 N.D. 364, 21 N.W.2d 808, 1946 N.D. LEXIS 68 (N.D. 1946); Olson v. Thompson, 74 N.W.2d 432, 1956 N.D. LEXIS 88 (N.D. 1956).

When the trial court’s findings of fact as to the market value of a strip of land taken for highway purposes and severance damages and consequential damages to the remainder, by the construction of a relocated grade, are the result of deliberate weighing of conflicting opinion evidence of all witnesses, as shown by the memorandum of the trial judge, such fact findings are entitled to appreciable weight. Little v. Burleigh County, 82 N.W.2d 603, 1957 N.D. LEXIS 118 (N.D. 1957).

An appeal on the issue of damages from a taking of land pursuant to section 14 of the constitution by state highway department for right of way purposes should be tried in the district court in the manner prescribed for trials under N.D.C.C. ch. 32-15., and the trial court, in a proper case, is governed by subsection 4 of this section. Wentz v. Pletka, 108 N.W.2d 337, 1961 N.D. LEXIS 66 (N.D. 1961).

Where land is condemned for highway, landowner is entitled to be paid value of land taken plus damage to remainder of land by reason of its severance from part taken and construction of highway. Frederickson v. Hjelle, 149 N.W.2d 733 (N.D. 1967), decided prior to the amendment to this section by Session Laws 1969, ch. 312.

Jury Function.

The only function of a jury in eminent domain is to assess the damages. City of Minot v. Minot Hwy. Ctr., Inc., 120 N.W.2d 597 (N.D. 1963), distinguished, Hoffman v. Berry, 139 N.W.2d 529 (N.D. 1966) and Mitzel v. Schatz, 167 N.W.2d 519, 1968 N.D. LEXIS 86 (N.D. 1968).

Noncontiguous Land Utilized As Unit.

Four tracts of land in which one individual owned at least an interest, to wit: sole ownership in one tract, joint ownership with brother in another tract, and joint ownership with wife in remaining two tracts, coupled with evidence that four tracts had been farmed for nearly 38 years as one unit, established sufficient identity of ownership to support jury’s finding that the entire farm was one “parcel”. Sauvageau v. Hjelle, 213 N.W.2d 381, 1973 N.D. LEXIS 143 (N.D. 1973).

If parcels of land which are separately owned are used in sufficient unity so that the parcels taken as a whole constitute one unit, the award of severance damages based on the unit as a whole is permissible. Sauvageau v. Hjelle, 213 N.W.2d 381, 1973 N.D. LEXIS 143 (N.D. 1973).

Power Transmission Line.

In proceeding to condemn a right of way for electric power transmission line, compensation should be awarded upon the basis of the damage done to the tract, crossed by the line, and separate damages, if any, to the remainder of the farm unit. The damage to the tract would be the difference between its reasonable market value before the building of the line and its reasonable market value thereafter. Northern States Power Co. v. Effertz, 94 N.W.2d 288, 1958 N.D. LEXIS 111 (N.D. 1958).

Preemption.

In a condemnation case, an argument that a state law jury requirement was not preempted was rejected because there was no constitutional right to a jury in eminent domain proceedings. Alliance Pipeline L.P. v. 4.360 Acres of Land, 746 F.3d 362, 2014 U.S. App. LEXIS 5388 (8th Cir. N.D.), cert. denied, 574 U.S. 873, 135 S. Ct. 245, 190 L. Ed. 2d 136, 2014 U.S. LEXIS 6138 (U.S. 2014).

Property Not Taken.

Damage to property not taken is not presumed. City of Devils Lake v. Davis, 480 N.W.2d 720, 1992 N.D. LEXIS 30 (N.D. 1992).

Severance Damages.

Damage to the portion of property not condemned where only part of the parcel of property is condemned is not presumed, and landowner has burden to prove that the remainder of such property has been damaged by the taking. City of Hazelton v. Daugherty, 275 N.W.2d 624, 1979 N.D. LEXIS 212 (N.D. 1979).

There is no sole measure for determining severance damages; the generally accepted best measure for such damages is the diminution or depreciation of the market value of the property not condemned, which is the difference in the market value of such property before and after the severance from the property condemned. City of Hazelton v. Daugherty, 275 N.W.2d 624, 1979 N.D. LEXIS 212 (N.D. 1979).

Where three of four lots in a parcel of adjoining lots were condemned to build a fire station, the disruption of the serenity of the remaining lot not condemned that will be caused by fire sirens and firetrucks results from the use to which the condemned lots will be put and as such is a consideration in determining consequential damages, and not severance damages to the remaining lot. City of Hazelton v. Daugherty, 275 N.W.2d 624, 1979 N.D. LEXIS 212 (N.D. 1979).

Telephone Line.

Evidence to the effect that the owner of abutting land used a portion of the highway for agricultural purposes was inadmissible in action to condemn a strip of land within the highway limits for a telephone line. Tri-State Tel. & Tel. Co. v. Cosgriff, 19 N.D. 771, 124 N.W. 75, 1909 N.D. LEXIS 104 (N.D. 1909).

Valuation of Land.
—In General.

An owner of property taken under the power of eminent domain is entitled to be paid the value of the parcel of land taken, plus damages which will accrue to the remainder of the land by reason of its severance from the portion taken. Wishek Inv. Co. v. McIntosh County, 77 N.D. 685, 45 N.W.2d 417, 1950 N.D. LEXIS 164 (N.D. 1950); Minnkota Power Coop. v. Bacon, 72 N.W.2d 880, 1955 N.D. LEXIS 146 (N.D. 1955).

In determining damages resulting to the owner from the taking of his property and that resulting from the severance of a portion, if a portion of the whole is taken, it is proper to consider such adaptability of the land for purposes other than that for which it is used at the time of taking as will in reasonable probability affect its present value. Wishek Inv. Co. v. McIntosh County, 77 N.D. 685, 45 N.W.2d 417, 1950 N.D. LEXIS 164 (N.D. 1950).

The words “value of the property” in subsection 1 of this section mean the market value. Little v. Burleigh County, 82 N.W.2d 603, 1957 N.D. LEXIS 118 (N.D. 1957).

General rule for determining the value of property taken under subdivision 1 is consideration of the fair market value of such property; fair market value being the highest price property can be sold for in the open market by a willing seller and a willing buyer, neither acting under compulsion and both exercising reasonable judgment. City of Hazelton v. Daugherty, 275 N.W.2d 624, 1979 N.D. LEXIS 212 (N.D. 1979).

—Depreciation.

Subsection 2 of this section provides, in effect, for 1. severance damages for the depreciation in market value of the remainder of the parcel caused by severance of the part taken, and 2. consequential damage to the remainder, not due to the taking itself, but arising by reason of the use to which the part taken has been put, or by reason of the construction of the improvement thereon. Little v. Burleigh County, 82 N.W.2d 603, 1957 N.D. LEXIS 118 (N.D. 1957).

Even though a county has taken private property for public purpose, the statute does not allow damages for increased business expense, as such, although if this should depreciate the market value of plaintiff’s land, such evidence would become material on that issue. Little v. Burleigh County, 82 N.W.2d 603, 1957 N.D. LEXIS 118 (N.D. 1957).

—Expert Opinion.

If the value of a tract of real estate is in controversy in condemnation proceeding, and the only evidence is that of experts who differ in their opinions as to its value, the jury may not disregard all the evidence in the case, and fix its value below the lowest or above the highest estimate of the experts, despite the fact that they may have inspected land under the order of the court. Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570, 1896 N.D. LEXIS 30 (N.D. 1896).

The owner of property taken under the power of eminent domain for a highway easement was entitled to severance damages equal to the diminution in value of his remaining property, where the property owner satisfied his burden of proof by presenting testimony of an experienced independent appraiser who testified that he used a comparable sales approach for appraising the property and that in his opinion the remaining property’s value was diminished because the best location for a homesite was within fifty feet of the easement. Dutchuk v. Board of County Comm'rs, 429 N.W.2d 21, 1988 N.D. App. LEXIS 4 (N.D. Ct. App. 1988).

—Farm.

Where a highway is established across a farm on which there is a set of permanent farm buildings and other improvements for the conduct of a stock farm and which is operated as a unit, the general rule is that the owner is entitled to recovery for the amount of land taken for the highway measured by the value of the land, together with the improvements thereon considered as a whole. Lineburg v. Sandven, 74 N.D. 364, 21 N.W.2d 808, 1946 N.D. LEXIS 68 (N.D. 1946); Olson v. Thompson, 74 N.W.2d 432, 1956 N.D. LEXIS 88 (N.D. 1956).

It is a general rule in determining compensation to be paid for farm land taken by eminent domain that the availability for subdivision purposes may be considered, but not the value or price of each proposed lot. Wishek Inv. Co. v. McIntosh County, 77 N.D. 685, 45 N.W.2d 417, 1950 N.D. LEXIS 164 (N.D. 1950).

Where a portion of land not taken is adaptable for commercial and industrial purposes, although being used for agriculture, the fact of its location close to a city, transportation facilities, and recent sale of other contiguous land for commercial and industrial uses may be considered by the court in determining its present true value. Minnkota Power Coop. v. Bacon, 72 N.W.2d 880, 1955 N.D. LEXIS 146 (N.D. 1955).

Collateral References.

Eminent Domain 122-150.

27 Am. Jur. 2d, Eminent Domain, §§ 536 et seq.

29A C.J.S. Eminent Domain, §§ 116-164, 166-177.

Valuation of land and improvements and fixtures thereon separately or as unit, 1 A.L.R.2d 878.

Negligence of governmental agents, damage to private property caused by, as “taking”, “damage”, or “use” for public purposes in constitutional sense, 2 A.L.R.2d 677.

Flood protection measures as entitling property owner to compensation or damages, 5 A.L.R.2d 57, 59.

Unity or continuity of properties essential to allowance of damages in eminent domain proceedings on account of remaining property, 6 A.L.R.2d 1179.

Temporary use and occupancy, elements and measure of compensation for, 7 A.L.R.2d 1297.

Subsurface: new or additional compensation for use by municipality or public of subsurface of street or highway for purposes other than sewers, pipes, conduits for wires, and the like, 11 A.L.R.2d 180, 206.

Highway access: right to damages where access of abutter is interfered with by municipal or public use of subsurface of street or highway for tunnel purposes, 11 A.L.R.2d 180, 206.

Conditions imposed to approval of proposed subdivision map or plat as constituting taking of property for public use without compensation, 11 A.L.R.2d 524, 532.

Constitutional rights of owner as against destruction of building by public authorities, 14 A.L.R.2d 73.

Agricultural purposes: admissibility in condemnation proceedings of opinion evidence as to probable profits derivable from land condemned if devoted to particular agricultural purposes, 16 A.L.R.2d 1113.

Riparian owner deprived by public authority of continuation of periodic and seasonal overflows from stream as entitled to compensation, 20 A.L.R.2d 656, 691.

Oil or gas pipeline through private property, elements and measure of compensation for, 38 A.L.R.2d 788.

Highway access: abutting owner’s right to compensation for loss of access because of limited access highway or street, 43 A.L.R.2d 1072; 42 A.L.R.3d 13; 42 A.L.R.3d 148.

Taxes: rights in respect of real estate taxes where property is taken in eminent domain, 45 A.L.R.2d 522.

Conveyance of land as bounded by road, street, or other way as giving grantee right to compensation upon taking for public highway, 46 A.L.R.2d 461, 490.

Pollution of stream, measure of compensation in condemnation proceedings for, 49 A.L.R.2d 253, 267.

Price: admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property during pendency of the proceeding, 55 A.L.R.2d 781.

Electric light or power line in street or highway as additional servitude, 58 A.L.R.2d 525.

Fire risk or hazard as element of damages in condemnation proceeding, 63 A.L.R.2d 313.

Trees: liability of public utility to abutting owner for destruction or injury of trees in or near highway or street under provisions requiring compensation for property taken for public use, 64 A.L.R.2d 866, 868.

Public utility plant, compensation or damages for condemnation of, 68 A.L.R.2d 392.

Solid mineral royalty under mining lease as real or personal property for purpose of payment of damages in condemnation proceedings, 68 A.L.R.2d 728, 735.

Moving: cost to property owner of moving personal property as element of damages or compensation, 69 A.L.R.2d 1453.

Parkway: right of owners of property abutting street to be compensated for loss of their interest in parkway in center of street on its appropriation for other uses, 81 A.L.R.2d 1436.

Options: right to damages or compensation upon condemnation of property of holder of unexercised option to purchase, 85 A.L.R.2d 588.

Bad reputation of condemned property derived from its illegal use for gambling, prostitution, or the like as factor decreasing compensation or damages, 87 A.L.R.2d 1156.

Purchasing power of money, changes in, as affecting compensation, 92 A.L.R.2d 772.

Injunction as available remedy against exercise of power of eminent domain as applied to imposition of additional servitude, 93 A.L.R.2d 465.

Severance damages, unity of ownership necessary to allowance of, 95 A.L.R.2d 887.

Valuation at time of original wrongful entry by condemnor or at time of subsequent initiation of condemnation proceedings, 2 A.L.R.3d 1038.

Depreciation in value, from project for which land is condemned, as a factor in fixing compensation, 5 A.L.R.3d 901.

Zoning as factor in determination of damages in eminent domain, 9 A.L.R.3d 291.

Highways: deduction of benefits in determining compensation or damages in proceedings involving opening, widening, or otherwise altering highway, 13 A.L.R.3d 1149.

Restrictive covenant, existence of, as element in fixing value of property condemned, 22 A.L.R.3d 961.

Rental value of other real property, admissibility, on issue of value of condemned real property of, 23 A.L.R.3d 724.

Proposed subdivision or platting: admissibility of evidence of proposed or possible subdivision or platting of condemned land on issue of value in eminent domain proceedings, 26 A.L.R.3d 780.

Public property: cost of substitute facilities as measure of compensation paid to state or municipality for condemnation of public property, 40 A.L.R.3d 143.

Abutting owner’s right to damages for limitation of access caused by conversion of conventional road into limited-access highway, 42 A.L.R.3d 13.

Measure and elements of damage for limitation of access caused by conversion of conventional road into limited-access highway, 42 A.L.R.3d 148.

Cemetery lands, measure of damages for condemnation of, 42 A.L.R.3d 1314.

Traffic noise and vibration from highway as element of damages in eminent domain, 51 A.L.R.3d 860.

Location: condemned property’s location in relation to proposed site of building complex or similar improvement as factor in fixing compensation, 51 A.L.R.3d 1050.

Good will or “going concern” value as element of lessee’s compensation for taking leasehold in eminent domain, 58 A.L.R.3d 566.

Liquor license, loss of, as compensable in condemnation proceeding, 58 A.L.R.3d 581.

Compensation for diminution in value of the remainder of property resulting from taking or use of adjoining land of others for the same undertaking, 59 A.L.R.3d 488.

Special assessment: consideration of fact that landowner’s remaining land will be subject to special assessment in fixing severance damages, 59 A.L.R.3d 534.

Salting for snow removal as taking or damaging abutting property for eminent domain purposes, 64 A.L.R.3d 1239.

Eminent domain: condemnor’s liability for costs of condemnee’s expert witnesses, 68 A.L.R.3d 546.

Eminent domain: measure and elements of lessee’s compensation for condemnor’s taking or damaging of leasehold, 17 A.L.R.4th 337.

Fear of powerline, gas or oil pipeline, or related structure as element of damages in easement condemnation proceeding, 23 A.L.R.4th 631.

Eminent domain: compensability of loss of view from owner’s property—state cases, 25 A.L.R.4th 671.

Eminent domain: measure and elements of damages or compensation for condemnation of public transportation system, 35 A.L.R.4th 1263.

Eminent domain, unity or contiguity of separate property sufficient to allow damages for diminished value of parcel remaining after taking of other parcel, 59 A.L.R.4th 308.

Admissibility of testimony of expert, as to basis of his opinion, to matters otherwise excludable as hearsay—state cases, 89 A.L.R.4th 456.

Measure of damages or compensation in eminent domain as affected by premises being restricted to particular educational, religious, charitable, or noncommercial use, 29 A.L.R.5th 36.

Elements and Measure of Compensation in Eminent Domain Proceeding for Temporary Taking of Property. 49 A.L.R.6th 205.

Zoning Scheme, Plan, or Ordinance as Temporary Taking. 55 A.L.R.6th 635.

32-15-22.1. Eminent domain — Compensation for moving personal property. [Repealed]

Repealed by S.L. 1973, ch. 407, § 17.

Note.

For present provisions, see ch. 54-01.1, Relocation Assistance.

32-15-23. When right to damages accrues.

For the purpose of assessing compensation and damages, the right thereto shall be deemed to have accrued at the date of the taking and its actual value at that date shall be the measure of compensation for all property actually to be taken, and the basis of damages to the property not actually taken, but injuriously affected, in all cases when such damages are allowed as provided in section 32-15-22. The time of the taking shall be determined by the court.

Source:

R.C. 1895, § 5966; R.C. 1899, § 5966; R.C. 1905, § 7596; C.L. 1913, § 8224; R.C. 1943, § 32-1523; S.L. 1969, ch. 311, § 1.

Notes to Decisions

Conditions Existing at Time of Assessment.

Compensation should be awarded in view of conditions existing and apparent at the time of the assessment of damages. Montana E. R. Co. v. Lebeck, 32 N.D. 162, 155 N.W. 648, 1915 N.D. LEXIS 64 (N.D. 1915).

“Date of the Taking.”

Compensation and damages in an eminent domain action are determined from the “date of the taking.” City of Devils Lake v. Davis, 480 N.W.2d 720, 1992 N.D. LEXIS 30 (N.D. 1992).

District court did not err in determining that the landowners’ inverse condemnation action on the smaller parcel was barred by the six-year statute of limitation where the right to compensation, and to bring an inverse condemnation action to recover such compensation, accrued on the date the property was taken. Hager v. City of Devils Lake, 2009 ND 180, 773 N.W.2d 420, 2009 N.D. LEXIS 188 (N.D. 2009).

Harmless Error.

Absent a showing that the property had a different value or alternative dates asserted by condemnee, any error of trial court instructing jury on date of taking was harmless. City of Devils Lake v. Davis, 480 N.W.2d 720, 1992 N.D. LEXIS 30 (N.D. 1992).

Where three of four lots in a parcel of adjoining lots were condemned to build a fire station, the disruption of the serenity of the remaining lot not condemned that will be caused by fire sirens and firetrucks results from the use to which the condemned lots will be put and as such is a consideration in determining consequential damages, and not severance damages to the remaining lot. City of Hazelton v. Daugherty, 275 N.W.2d 624, 1979 N.D. LEXIS 212 (N.D. 1979).

Time of Trial.

The measure of damages for a taking of property in exercise of the right of eminent domain is the value of defendant’s interest in the land at the time of trial and the damage at that date sustained by its appropriation to the uses of the party condemning. Tri-State Tel. & Tel. Co. v. Cosgriff, 19 N.D. 771, 124 N.W. 75, 1909 N.D. LEXIS 104 (N.D. 1909).

Valuation.
—In General.

General rule for determining the value of property taken under subdivision 1 is consideration of the fair market value of such property; fair market value being the highest price property can be sold for in the open market by a willing seller and a willing buyer, neither acting under compulsion and both exercising reasonable judgment. City of Hazelton v. Daugherty, 275 N.W.2d 624, 1979 N.D. LEXIS 212 (N.D. 1979).

—Expert Opinion.

The owner of property taken under the power of eminent domain for a highway easement was entitled to severance damages equal to the diminution in value of his remaining property, where the property owner satisfied his burden of proof by presenting testimony of an experienced independent appraiser who testified that he used a comparable sales approach for appraising the property and that in his opinion the remaining property’s value was diminished because the best location for a homesite was within fifty feet of the easement. Dutchuk v. Board of County Comm'rs, 429 N.W.2d 21, 1988 N.D. App. LEXIS 4 (N.D. Ct. App. 1988).

Collateral References.

Eminent Domain 124.

26 Am. Jur. 2d, Eminent Domain, § 536 et seq.

29A C.J.S. Eminent Domain, §§ 172-177.

Valuation at time of original wrongful entry by condemnor or at time of subsequent initiation of condemnation proceedings, 2 A.L.R.3d 1038.

Eminent domain, unity or contiguity of separate property sufficient to allow damages for diminished value of parcel remaining after taking of other parcel, 59 A.L.R.4th 308.

32-15-24. When title defective.

If the title acquired is found to be defective from any cause, the plaintiff again may institute proceedings to acquire the same as in this chapter prescribed.

Source:

R.C. 1895, § 5967; R.C. 1899, § 5967; R.C. 1905, § 7597; C.L. 1913, § 8225; R.C. 1943, § 32-1524.

32-15-25. When judgment paid.

The plaintiff, within thirty days after the entry of final judgment, must pay the sum of money assessed, except where school or public land upon which no contract is outstanding is taken for public use under this chapter, the plaintiff shall pay for such land as follows: one-fifth of the sale price in cash at the time of the sale; one-fifth of the purchase price each five years thereafter on the anniversary date of the sale, with interest at the rate of not less than three percent per annum, payable annually in advance.

Source:

R.C. 1895, § 5968; R.C. 1899, § 5968; R.C. 1905, § 7598; S.L. 1907, ch. 108, § 1; C.L. 1913, § 8226; R.C. 1943, § 32-1525.

Notes to Decisions

City Warrant.

Payment of damages for property taken by city warrant was improper. City of Minot v. Olson, 42 N.D. 246, 173 N.W. 458, 1919 N.D. LEXIS 156 (N.D. 1919).

Collateral References.

Eminent Domain 160, 163.

29A C.J.S. Eminent Domain, § 183.

32-15-26. Payment or deposit — Proceedings annulled.

Payment may be made to the defendant entitled thereto, or the money may be deposited in court for the defendant and be distributed to those entitled thereto. If the money is not so paid or deposited, the defendant may have execution as in civil actions, unless execution is stayed by order of the court pending a motion for a new trial or on appeal, and if the money cannot be made on execution, the court upon a showing to that effect must set aside and annul the entire proceedings.

Source:

R.C. 1895, § 5969; R.C. 1899, § 5969; R.C. 1905, § 7599; C.L. 1913, § 8227; R.C. 1943, § 32-1526.

Cross-References.

Municipality as condemnor, special assessments and general tax levy to pay for acquisition, see N.D.C.C. § 40-22-05.

Collateral References.

Eminent Domain 76, 160, 164, 267, 270.

29A C.J.S. Eminent Domain, §§ 2, 184, 376, 380, 381.

32-15-27. Final order — Filing.

When payments have been made as required in sections 32-15-25 and 32-15-26, the court must make a final order of condemnation, which must describe the property condemned and the purposes of such condemnation. A copy of the order must be filed in the office of the recorder of the county and thereupon the property described therein shall vest in the plaintiff for the purposes therein specified.

Source:

R.C. 1895, § 5970; R.C. 1899, § 5970; R.C. 1905, § 7600; C.L. 1913, § 8228; R.C. 1943, § 32-1527; S.L. 2001, ch. 120, § 1.

Collateral References.

Eminent Domain 308.

29A C.J.S. Eminent Domain, § 411.

32-15-28. Public corporation bound by judgment.

In the event that any property is being acquired by any public corporation through condemnation proceedings, such public corporation shall be bound by the judgment rendered therein and within six months after the entry of such a judgment shall pay into court the full amount of the judgment on account of damages. If the public corporation shall dismiss the action prior to the entry of judgment thereon, the court shall award to the defendant reasonable actual or statutory costs, or both, which shall include reasonable attorney’s fees.

Source:

S.L. 1921, ch. 63, § 1, subs. 7; 1925 Supp., § 8205, subs. 7; R.C. 1943, § 32-1528; S.L. 1957, ch. 225, § 1; 1957 Supp., § 32-1528.

Notes to Decisions

Payment of Award.

A municipal corporation condemning property need not pay into court the amount awarded until after the judgment is entered upon the verdict and the court’s order. Park Dist. v. Zech, 56 N.D. 431, 218 N.W. 18, 1928 N.D. LEXIS 229 (N.D. 1928).

32-15-29. When possession taken — How money paid defendant — Acceptance — Abandonment of defenses.

At any time after the entry of judgment, whenever the plaintiff shall have paid to the defendant, or into court for the defendant, the full amount of the judgment, the district court in which the proceeding was tried, upon notice of not less than three days, may authorize the plaintiff to take possession of and use the property during the pendency of and until the final conclusion of the litigation and, if necessary, may stay all actions and proceedings against the plaintiff on account thereof. The defendant, who is entitled to the money paid into court for the defendant upon judgment, shall be entitled to demand and receive the same at any time thereafter upon obtaining an order therefor from the court. The court, or a judge thereof, upon application made by such defendant, shall order and direct that the money so paid into court for the defendant be delivered to the defendant upon the defendant’s filing a satisfaction of the judgment, or upon the defendant’s filing a receipt therefor and an abandonment of all defenses to the action or proceeding except as to the amount of damages that the defendant may be entitled to in the event that a new trial shall be granted. A payment to a defendant as aforesaid shall be held to be an abandonment by such defendant of all defenses interposed by the defendant, except the defendant’s claim for greater compensation.

Source:

R.C. 1895, § 5971; R.C. 1899, § 5971; R.C. 1905, § 7601; C.L. 1913, § 8229; R.C. 1943, § 32-1529.

Cross-References.

Municipality as condemnor, procedure for immediate possession of right of way, see N.D.C.C. § 40-22-05.

Notes to Decisions

Acceptance of Payment.

After entry of judgment the plaintiff may be given possession upon depositing the damages adjudged and unless the defendant accepts payment all of his defenses, including necessity, may be asserted by him either upon a motion for a new trial, a new trial, or appeal, if presented in accordance with the prescribed practice. State ex rel. Northern States Power Co. v. Teigen, 80 N.W.2d 110, 1956 N.D. LEXIS 165 (N.D. 1956).

This section clearly indicates that judgment must be entered upon verdict and that thereafter certain procedure must be followed; in condemnation action in which no judgment was entered prior to entry of order requiring payment to city of amount of uncertified and unreturned special assessments levied against property, landowner’s acceptance of check for full amount awarded in final order (which was less than jury verdict) and of check for attorney’s fees and costs constituted settlement which deprived landowner of right to appeal from final order of condemnation even though landowner had conveyed property to condemnor covenanting that it was free from all encumbrances except installments for special assessments or assessments for special improvements which had not been certified. City of Fargo Urban Renewal Agency v. Fargo Union Mission, 152 N.W.2d 465, 1967 N.D. LEXIS 83 (N.D. 1967).

Legislative Intent.

There is nothing in the general language of subsection (12) of N.D.C.C. § 61-16.1-09 relating to methods of acquiring property, which indicates a legislative intent to deviate from the specific language of subsection (2) of N.D.C.C. § 61-16.1-09 limiting the county water resource board’s exercise of the power of eminent domain to the manner provided by N.D.C.C. tit. 32. Johnson v. Wells County Water Resource Bd., 410 N.W.2d 525, 1987 N.D. LEXIS 389 (N.D. 1987).

Payment into Court.

In an eminent domain action, where the plaintiff has established the necessity for the location of a route for a power transmission line and has taken easements for the construction thereof, and paid into court the amount of the damages ascertained by a jury, pursuant to this section, the trial court is authorized under the terms of N.D.C.C. § 32-15-34 to grant possession of the property taken pending appeal. Otter Tail Power Co. v. Malme, 92 N.W.2d 514, 1958 N.D. LEXIS 92 (N.D. 1958).

N.D.C.C. § 32-15-29 does not provide for the accrual of any interest following the deposit of the full judgment amount by the political subdivision. Although the statute appears to require unsatisfied landowners to make a difficult choice between withdrawing the deposit and limiting their appeal to a claim for greater compensation, or foregoing the use of the funds and preserving all of their potential issues on appeal, there is nothing in the statute suggesting the legislature intended something different. N.D.C.C. § 32-15-29 does not provide for the accrual of postjudgment interest subsequent to a deposit of the full amount of the judgment by the political subdivision. City of Fargo v. Wieland, 2020 ND 170, 946 N.W.2d 695, 2020 N.D. LEXIS 161 (N.D. 2020).

Landowner was not entitled to postjudgment interest as neither N.D.C.C. §§ 32-15-29 nor 32-15-30 provided for postjudgment interest on such an award subsequent to the political subdivision’s deposit of the full amount of the judgment in court. In this case, the city had deposited the full amount required by the amended judgment with the court. City of Fargo v. Wieland, 2020 ND 170, 946 N.W.2d 695, 2020 N.D. LEXIS 161 (N.D. 2020).

32-15-30. Payment of money into court at risk of plaintiff.

The payment of the money into court as provided for in this chapter shall not discharge the plaintiff from liability to keep the said fund full and without diminution, but such money shall be and remain as to all accidents, defalcations, or other contingencies as between the parties to the proceedings at the risk of the plaintiff, and shall remain so until the amount of the compensation or damages finally is settled by judicial determination and until the court awards the money, or such part thereof as shall be determined upon, to the defendant, and until the defendant is authorized or required by order of court to take it. If for any reason the money at any time shall be lost, or otherwise abstracted or withdrawn, through no fault of the defendant, the court shall require the plaintiff to make and keep the sum good at all times until the litigation finally is brought to an end, and until paid over or made payable to the defendant by order of the court, as provided in section 32-15-29, and until such time or times the clerk of court shall be deemed to be the custodian of the money and shall be liable to the plaintiff upon the clerk’s official bond for the same, or any part thereof, if for any reason it is lost, or otherwise abstracted or withdrawn.

Source:

R.C. 1895, § 5971; R.C. 1899, § 5971; R.C. 1905, § 7601; C.L. 1913, § 8229; R.C. 1943, § 32-1530.

Notes to Decisions

Judgment Interest.

N.D.C.C. § 32-15-30 is not ambiguous and does not provide for the accrual of any interest following the deposit of the full judgment amount by the political subdivision. City of Fargo v. Wieland, 2020 ND 170, 946 N.W.2d 695, 2020 N.D. LEXIS 161 (N.D. 2020).

Landowner was not entitled to postjudgment interest as neither N.D.C.C. §§ 32-15-29 nor 32-15-30 provided for postjudgment interest on such an award subsequent to the political subdivision’s deposit of the full amount of the judgment in court. In this case, the city had deposited the full amount required by the amended judgment with the court. City of Fargo v. Wieland, 2020 ND 170, 946 N.W.2d 695, 2020 N.D. LEXIS 161 (N.D. 2020).

32-15-31. Deposit of money with state treasurer.

The court may order the moneys to be deposited in the state treasury and in such case the state treasurer shall receive all such moneys, duly receipt for and safely keep the same in a special fund to be entered on the state treasurer’s books as a condemnation fund for such purpose, and for such duty the state treasurer shall be liable to the plaintiff upon the state treasurer’s official bond. The state treasurer shall pay out such money so deposited in such manner and at such times as the court or judge thereof by order may direct.

Source:

R.C. 1895, § 5971; R.C. 1899, § 5971; R.C. 1905, § 7601; C.L. 1913, § 8229; R.C. 1943, § 32-1531.

32-15-32. Costs.

The court may in its discretion award to the defendant reasonable actual or statutory costs or both, which may include interest from the time of taking except interest on the amount of a deposit which is available for withdrawal without prejudice to right of appeal, costs on appeal, and reasonable attorney’s fees for all judicial proceedings. If the defendant appeals and does not prevail, the costs on appeal may be taxed against the defendant. In all cases when a new trial has been granted upon the application of the defendant and the defendant has failed upon such trial to obtain greater compensation than was allowed the defendant upon the first trial, the costs of such new trial shall be taxed against the defendant.

Source:

R.C. 1895, § 5971; R.C. 1899, § 5971; R.C. 1905, § 7601; C.L. 1913, § 8229; R.C. 1943, § 32-1532; S.L. 1957, ch. 226, § 1; 1957 Supp., § 32-1532; S.L. 1969, ch. 312, § 1.

Notes to Decisions

In General.

The trial court is authorized to award costs and attorney’s fees in an eminent domain action. City of Devils Lake v. Davis, 480 N.W.2d 720, 1992 N.D. LEXIS 30 (N.D. 1992).

Application of Section.

This section does not apply to proceedings provided for outside of N.D.C.C. ch. 32-15. United Power Ass'n v. Moxness, 267 N.W.2d 814, 1978 N.D. LEXIS 139 (N.D. 1978).

Landowners’ award of attorney fees and costs in a condemnation action was not an abuse of discretion because (1) the fact that the landowners had been offered more than the damages award did not bar an award of fees and costs, (2) the landowners submitted sufficient supporting evidence, (3) a district’s commissioning of a soil study and a large discrepancy in the property’s alleged value made the case more complex, and (4) it was not an abuse of discretion to decline to fault the landowners for an appraiser’s deficient testimony. Cass Cty. Joint Water Res. Dist. v. Erickson, 2018 ND 228, 918 N.W.2d 371, 2018 N.D. LEXIS 236 (N.D. 2018).

Attorney Fees.

The taxing of attorney fees by the prevailing party for an attorney representing a person who was not a party to the action, and for which fees the prevailing party in the lawsuit is in no way liable, is not permitted under this section. United Dev. Corp. v. State Highway Dep't, 133 N.W.2d 439, 1965 N.D. LEXIS 137 (N.D. 1965).

Where a prevailing party hires a number of attorneys during the course of a lawsuit, and where a statute permits “reasonable attorney’s fees”, he may tax only one attorney’s fee for the litigation. United Dev. Corp. v. State Highway Dep't, 133 N.W.2d 439, 1965 N.D. LEXIS 137 (N.D. 1965).

The amount of reasonable attorney’s fee in any given case is to be determined in the sound discretion of the trial court in view of all the surrounding, relevant circumstances of the case. United Dev. Corp. v. State Highway Dep't, 133 N.W.2d 439, 1965 N.D. LEXIS 137 (N.D. 1965).

Where the trial court determined the fees due the prevailing party’s attorney on the basis of the fee due the attorney under the provisions of a contingent fee contract, without reference to whether such fees were reasonable for the services rendered in view of all the surrounding circumstances, such fees were not fixed in accordance with this section. The basis of such fee must be reasonableness. Morton County Board of Park Comm'rs v. Wetsch, 136 N.W.2d 158, 1965 N.D. LEXIS 158 (N.D. 1965).

In arriving at what is a reasonable attorney fee in each case, the court should consider the character of the services rendered by the attorney, the results which the attorney obtained for his client, the customary fee charged for such services, and the ability and skill of the attorney rendering the services. Morton County Board of Park Comm'rs v. Wetsch, 136 N.W.2d 158, 1965 N.D. LEXIS 158 (N.D. 1965).

Where the trial court determines that attorney fee charged the defendant upon the basis of a contingent fee contract between the defendant and his attorney was a reasonable fee under all the circumstances, it was within the sound judicial discretion of the court to award such fee as part of the costs due defendant under this section. Morton County Board of Park Comm'rs v. Wetsch, 142 N.W.2d 751, 1966 N.D. LEXIS 167 (N.D. 1966).

Attorney’s fees which computed to be one-third of the amount of the difference between amount offered and amount of verdict was within trial court’s discretion. Municipal Airport Auth. v. Stockman, 198 N.W.2d 212, 1972 N.D. LEXIS 145 (N.D. 1972).

Award of $ 10,000 as attorneys’ fees was within trial court’s discretion where appellate court was unable to find as a matter of law that the increase in a subsequent appraisal of value from $ 8,000 to $ 39,000 was not due to the skill, knowledge, experience, and efforts of the counsel for the landowner, showing the need for an increase in the deposit by the commissioner. Sauvageau v. Hjelle, 213 N.W.2d 381, 1973 N.D. LEXIS 143 (N.D. 1973).

Contingency fee arrangement between attorney and client may not be used as a basis in determining the amount to award as reasonable attorney fees. City of Bismarck v. Thom, 261 N.W.2d 640, 1977 N.D. LEXIS 185 (N.D. 1977), overruled in part, Cass Cty. Joint Water Res. Dist. v. Erickson, 2018 ND 228, 918 N.W.2d 371, 2018 N.D. LEXIS 236 (N.D. 2018).

In determining reasonable attorney fees, the court must first determine the number of hours the attorney has expended, then determine specific hourly rates based upon the attorney’s experience and reputation, and make adjustments on the basis of objective evaluation of the complexity and novelty of the litigation and the corresponding degree of skills displayed by the attorney. City of Bismarck v. Thom, 261 N.W.2d 640, 1977 N.D. LEXIS 185 (N.D. 1977), overruled in part, Cass Cty. Joint Water Res. Dist. v. Erickson, 2018 ND 228, 918 N.W.2d 371, 2018 N.D. LEXIS 236 (N.D. 2018).

Trial court did not abuse its discretion by denying attorney fees for time spent in seemingly overextended conferences with clients and witnesses and unsuccessful attempts to abort the trial in an eminent domain proceeding. United Power Ass'n v. Faber, 277 N.W.2d 287, 1979 N.D. LEXIS 203 (N.D. 1979).

Lessee was entitled to reasonable attorney fees necessary to prove the damage to the leasehold caused by inverse condemnation by school district. Hager v. Devils Lake Pub. Sch. Dist., 301 N.W.2d 630, 1981 N.D. LEXIS 248 (N.D. 1981).

This section, as amended in 1969, is broad enough to authorize reasonable attorney fees for defending an appeal of an eminent domain judgment by the board of county commissioners. Dutchuk v. Board of County Comm'rs, 429 N.W.2d 21, 1988 N.D. App. LEXIS 4 (N.D. Ct. App. 1988).

Condemnee was entitled to have attorney’s fees determined in light of the difference between the amount of the award and the initial deposit in order to measure the results obtained. City of Devils Lake v. Davis, 480 N.W.2d 720, 1992 N.D. LEXIS 30 (N.D. 1992).

The “results which the attorney obtained for his client,” as well as the “customary fee charged” are among the significant factors in allowing attorney’s fees in eminent domain proceedings. City of Devils Lake v. Davis, 480 N.W.2d 720, 1992 N.D. LEXIS 30 (N.D. 1992).

It is the reasonableness of the fee, and not the arrangement the attorney and his client may have agreed upon, which is controlling whenever the fee is to be assessed and included in the judgment; thus, plaintiff’s contingency agreement with counsel did not limit the trial court’s attorney fee award. Cassady v. Souris River Tel. Coop., 520 N.W.2d 803, 1994 N.D. LEXIS 185 (N.D. 1994).

The trial court erred in reducing a request for attorney fees to be proportionate to the damages awarded by the jury without explaining what work the court deemed unreasonable and why such work was unreasonable. City of Medora v. Golberg, 1997 ND 190, 569 N.W.2d 257, 1997 N.D. LEXIS 228 (N.D. 1997).

Motions for attorneys’ fees pursuant to N.D.C.C. § 32-15-32 by landowners who settled their claims in a condemnation action brought by a pipeline company, where one landowner requested $ 8,280 (55.2 hours at $ 150 per hour) in attorneys’ fees, and a second group of landowners requested $ 31,920 (212.80 hours at $ 150 per hour) and $ 1,823 in costs, were granted because the hourly rate and the number of hours expended were more than reasonable in light of the complexity of the litigation, the degree of skills displayed by each attorney, the character of the services rendered, the results which the attorney obtained, and the customary fee charged in the locality for such services. Williston Basin Interstate Pipeline Co. v. Dolyniuk Family Trust, 2005 U.S. Dist. LEXIS 12832 (D.N.D. June 27, 2005).

Denying attorney fees incurred in challenging an order for examinations and surveys was not an abuse of discretion, in light of the preliminary nature of the proceedings and the district court’s consideration of the appropriate factors. Alliance Pipeline L.P. v. Smith, 2013 ND 117, 833 N.W.2d 464, 2013 N.D. LEXIS 131 (N.D. 2013).

Reducing a property owner’s requested attorney fees was not an abuse of discretion where $150 per hour was a customary fee for associates in the locality, and that figure fell within the range of evidence presented. N.D. DOT v. Schmitz, 2018 ND 113, 910 N.W.2d 874, 2018 N.D. LEXIS 118 (N.D. 2018).

Declining to award attorney fees incurred in making the application for attorney fees and costs was not error where the district court determined a reasonable number of hours expended by the attorneys for the entire action. N.D. DOT v. Schmitz, 2018 ND 113, 910 N.W.2d 874, 2018 N.D. LEXIS 118 (N.D. 2018).

In an eminent domain action, the district court abused its discretion by drastically reducing the first attorney’s fees from the $159,180.33 requested to $30,000, by reducing the first attorney’s billed time from 361 hours to 100 hours, without adequate explanation; thus, that portion of the judgment was reversed, and the case was remanded for the district court to make a more understandable and detailed explanation. North Dakota DOT v. Rosie Glow, LLC, 2018 ND 123, 911 N.W.2d 334, 2018 N.D. LEXIS 130 (N.D. 2018).

In an eminent domain action, the district court adequately explained its reasoning and did not abuse its discretion in reducing the second attorney’s hours to a total of eights hours in its award of attorney’s fees because the court would not include hours spent traveling; although the trial lasted three days, a total of 18 hours and 26 minutes were on the record, including voir dire, testimony, and arguments outside of the jury’s presence, the second attorney listed 22.5 hours for trial time, but the second attorney only questioned one witness, the time spent on that witness’s testimony in trial was approximately one hour, and the second attorney spent approximately five hours preparing for his witness’s testimony. North Dakota DOT v. Rosie Glow, LLC, 2018 ND 123, 911 N.W.2d 334, 2018 N.D. LEXIS 130 (N.D. 2018).

In an eminent domain action under N.D.C.C. ch. 32-15 to acquire an easement for a 3,000-foot natural gas pipeline to service a railroad switch, a judgment ordering the utility to pay the property owner attorney’s fees and costs incurred in the eminent domain action was upheld because this section gave the district court discretion to award reasonable actual or statutory costs and reasonable attorney’s fees in actions condemnation or inverse condemnation. Montana-Dakota Utils. Co. v. Behm, 2020 ND 234, 951 N.W.2d 208, 2020 N.D. LEXIS 251 (N.D. 2020), cert. denied, — U.S. —, 210 L. Ed. 2d 835, 2021 U.S. LEXIS 2704 (U.S. 2021).

Cost-Shifting.

The generalized cost-shifting provisions of N.D.R.Civ.P. 68(a) are inapplicable to eminent domain proceedings. Gissel v. Kenmare Township, 512 N.W.2d 470, 1994 N.D. LEXIS 42 (N.D. 1994).

Because the provisions for cost-shifting in this section are “specific,” the generalized cost-shifting provisions of N.D.R.Civ.P. 54(e), and N.D.C.C. § 28-26-06(5) do not apply in eminent domain proceedings under this chapter, and the trial court has no statutory authority to assess the costs and fees of a city’s expert appraiser against defendants. City of Jamestown v. Leevers Supermarkets, 552 N.W.2d 365, 1996 N.D. LEXIS 191 (N.D. 1996).

District court abused its discretion in awarding the city costs and disbursements against a property owner because an award of costs against a plaintiff landowner in an inverse condemnation action was statutorily precluded. Lenertz v. City of Minot, 2019 ND 53, 923 N.W.2d 479, 2019 N.D. LEXIS 51 (N.D. 2019).

Expert Witness Fees.

Trial court abused its discretion when it awarded a substantially reduced amount of expert witness fees from those requested without providing any explanation or rationale for doing so. Arneson v. Fargo, 331 N.W.2d 30, 1983 N.D. LEXIS 247 (N.D. 1983).

Reducing the award of expert witness fees was not an abuse of discretion where an expert’s costs who had not testified at trial were excluded, and the appropriate factors as to the other experts were discussed. N.D. DOT v. Schmitz, 2018 ND 113, 910 N.W.2d 874, 2018 N.D. LEXIS 118 (N.D. 2018).

In an eminent domain action, because the Department of Transportation chose to depose appellant’s expert witness, and appellant was entitled to recover those costs absent an agreement to the contrary, the district court abused its discretion in declining to award necessary expenses related to the expert’s deposition, and, on remand, the district court had to determine a reasonable amount for the expert’s preparation and deposition fees. North Dakota DOT v. Rosie Glow, LLC, 2018 ND 123, 911 N.W.2d 334, 2018 N.D. LEXIS 130 (N.D. 2018).

In an eminent domain action, the district court referred to the non-exclusive factors to consider when awarding reasonable expert witness fees and did not abuse its discretion in awarding appellant $5,625 instead of the requested $7,500 for the expert witness’s appraisal because the district court found nothing in the record provided a clear explanation of the services provided by the expert in completing his appraisal. North Dakota DOT v. Rosie Glow, LLC, 2018 ND 123, 911 N.W.2d 334, 2018 N.D. LEXIS 130 (N.D. 2018).

In an eminent domain action, the district court abused its discretion in declining to award any costs for the expert witness’s review of the Department of Transportation’s appraisal because it did not explain its decision. North Dakota DOT v. Rosie Glow, LLC, 2018 ND 123, 911 N.W.2d 334, 2018 N.D. LEXIS 130 (N.D. 2018).

Improvements.

The appropriate relief for the loss of improvements made in good faith, while in possession under color of title, is recovery of the reasonable value of the improvements; avoidance of foreclosure and rearrangement of priorities among competing security interests are not remedies for unjust enrichment. Williston Coop. Credit Union v. Fossum, 427 N.W.2d 804, 1988 N.D. LEXIS 181 (N.D. 1988).

Inverse Condemnation.

When a landowner brings an action in inverse condemnation through which he receives a compensation for the taking or damaging of his property for public use it is proper for the trial court to award reasonable costs and attorney fees. Arneson v. Fargo, 331 N.W.2d 30, 1983 N.D. LEXIS 247 (N.D. 1983).

Where litigation remained an inverse condemnation action under N.D.C.C. ch. 32-15, defendant condemnors could not claim the benefit of N.D.C.C. § 24-07-29 to the exclusion of N.D.C.C. § 32-15-32, which governed the award of costs. Gissel v. Kenmare Township, 512 N.W.2d 470, 1994 N.D. LEXIS 42 (N.D. 1994).

Landowners’ tort claims were not “rooted” in any taking, but were based upon the independent grounds of nuisance and negligence, and they were actions and claims for relief entirely separate and distinct from the inverse condemnation claims, and the city was required to muster separate defenses to each claim; joining the tort claims with inverse condemnation claims did not preclude taxation of costs for the separate tort claims under N.D.R.Civ.P. 54(e) and N.D.C.C. § 28-26-06, and the district court did not err in concluding it could tax costs for the tort claims against the landowners. Hager v. City of Devils Lake, 2009 ND 180, 773 N.W.2d 420, 2009 N.D. LEXIS 188 (N.D. 2009).

District court properly awarded costs to an owner as the prevailing party because what a city described as multiple inverse condemnation claims were merely several theories of damage, and the city was not eligible to recover costs where the cited statutes did not apply to eminent domain proceedings. Lincoln Land Dev., LLP v. City of Lincoln, 2019 ND 81, 924 N.W.2d 426, 2019 N.D. LEXIS 84 (N.D. 2019).

Maximum Costs for Expert Witness.

The language “reasonable actual or statutory costs or both”, as used in this section, must be interpreted to award costs, including an amount not in excess of the statutory limit provided for expert witnesses in N.D.C.C. § 28-26-06, which is fifty dollars a day plus actual expenses. United Dev. Corp. v. State Highway Dep't, 133 N.W.2d 439, 1965 N.D. LEXIS 137 (N.D. 1965).

Other Costs.

District court erred in ruling that certain litigation costs were not taxable where it misapplied N.D.C.C. §§ 32-15-32, 28-26-06, and 28-26-10 to conclude that attorney travel costs were not reimbursable. N.D. DOT v. Schmitz, 2018 ND 113, 910 N.W.2d 874, 2018 N.D. LEXIS 118 (N.D. 2018).

Supreme Court Appeal.

This section is not applicable to trial de novo on appeal in supreme court. Frederickson v. Hjelle, 149 N.W.2d 733, 1967 N.D. LEXIS 138 (N.D. 1967).

DECISIONS UNDER PRIOR LAW

Interest.

Under statute prior to 1969, only interest from time of verdict to entry of judgment could be taxed as costs. United Dev. Corp. v. State Highway Dep't, 133 N.W.2d 439, 1965 N.D. LEXIS 137 (N.D. 1965).

Collateral References.

Eminent Domain 148, 265, 316.

27 Am. Jur. 2d, Eminent Domain, §§ 667 et seq.

29A C.J.S. Eminent Domain, §§ 164, 366-372, 374, 413.

Attorney’s fees as within statute imposing upon condemner liability for “expenses”, “costs”, and the like, 26 A.L.R.2d 1295.

Liability, upon abandonment of eminent domain proceedings, for interest on award or judgment, 92 A.L.R.2d 355, 411.

Condemner’s right, as against condemnee, to interest on excessive money deposited in court or paid to condemnee, 99 A.L.R.2d 886.

Excessiveness or adequacy of attorneys’ fees in matters involving real estate—modern cases, 10 A.L.R.5th 448.

32-15-33. Rules of practice.

Except as otherwise provided in this chapter, the provisions of the North Dakota Rules of Civil Procedure are applicable to and constitute the rules of practice in the proceedings mentioned in this chapter.

Source:

R.C. 1895, § 5972; R.C. 1899, § 5972; R.C. 1905, § 7602; C.L. 1913, § 8230; R.C. 1943, § 32-1533.

32-15-34. New trials and appeals.

The provisions of this code relative to new trials and appeals, except insofar as they are inconsistent with the provisions of this chapter, apply to the proceedings mentioned in this chapter, but upon the payment of the damages assessed the plaintiff shall be entitled to enter into, improve, and hold possession of the property sought to be condemned as provided in section 32-15-29 and to devote the same to the public use in question, and no motion for a new trial or appeal after such payment shall retard the contemplated improvement in any manner. Any money which shall have been deposited, as provided in section 32-15-29, shall be applied to the payment of the recovery upon a new trial and the remainder, if there is any, shall be returned to the plaintiff.

Source:

R.C. 1895, § 5973; R.C. 1899, § 5973; R.C. 1905, § 7603; C.L. 1913, § 8231; 1925 Supp., § 8231; R.C. 1943, § 32-1534.

Cross-References.

Appeals, see N.D.C.C. ch. 28-27 and N.D.R.App.P. 1 et seq.

Appeals by municipality, see N.D.C.C. § 40-22-05.

New trials, see N.D.C.C. §§ 28-14-21, 28-27-29.1, 28-27-31, N.D.R.App.P., Rule 35 and N.D.R.Civ.P. 46 and 59.

Notes to Decisions

Appeal.

In an eminent domain action, where the plaintiff has established the necessity for the location of a route for a power transmission line and has taken easements for the construction thereof, and paid into court the amount of the damages ascertained by a jury, pursuant to N.D.C.C. § 32-15-29, the trial court is authorized under the terms of this section to grant possession of the property taken pending appeal. Otter Tail Power Co. v. Malme, 92 N.W.2d 514, 1958 N.D. LEXIS 92 (N.D. 1958).

Motion for New Trial.

After entry of judgment the plaintiff may be given possession upon depositing the damages adjudged and unless the defendant accepts payment all of his defenses, including necessity, may be asserted by him either upon a motion for a new trial, a new trial, or appeal, if presented in accordance with prescribed practice. State ex rel. Northern States Power Co. v. Teigen, 80 N.W.2d 110, 1956 N.D. LEXIS 165 (N.D. 1956).

Collateral References.

27 Am. Jur. 2d, Eminent Domain, §§ 626 et seq.

32-15-35. Eminent domain proceedings — Costs of defendant to be paid when proceedings withdrawn or dismissed by party bringing the proceedings.

Whenever the state acting by and through its officers, departments, or agencies, or any municipality or political subdivision of this state acting by and through its officers, departments, or agencies, or any public utility, corporation, limited liability company, association, or other entity which has been granted the power of eminent domain by the state, shall commence eminent domain proceedings against any land within this state and thereafter withdraws or has such proceedings dismissed without agreement of the defendant, the state, municipality, political subdivision, public utility, corporation, limited liability company, association, or entity commencing such eminent domain proceedings shall be liable for and pay to the owner of such land all court costs, expenses, and fees, including reasonable attorney’s fees as shall be determined by the court in which the proceedings were filed.

Source:

S.L. 1967, ch. 269, § 1; 1993, ch. 54, § 106.

Notes to Decisions

Application of Section.

This section does not apply to proceedings provided for outside of N.D.C.C. ch. 32-15. United Power Ass'n v. Moxness, 267 N.W.2d 814, 1978 N.D. LEXIS 139 (N.D. 1978).

Attorney Fees.

In determining reasonable fees the court must first determine the number of hours the attorney has expended, then determine specific hourly rates based upon the attorney’s experience and reputation, and make adjustments on the basis of objective evaluation of the complexity and novelty of the litigation and the corresponding degree of skills displayed by the attorney. United Power Ass'n v. Moxness, 267 N.W.2d 814, 1978 N.D. LEXIS 139 (N.D. 1978).

“Expenses”.

An award for expenses is limited to actual cash outlays. United Power Ass'n v. Moxness, 267 N.W.2d 814, 1978 N.D. LEXIS 139 (N.D. 1978).

CHAPTER 32-16 Action for Partition of Real Property

32-16-01. When may be brought.

When several cotenants hold and are in possession of real or personal property as partners, joint tenants, or tenants in common, in which one or more of them have an estate of inheritance, or for life or lives, or for years, an action may be brought by one or more of such persons for a partition thereof according to the respective rights of the persons interested therein and for a sale of such property or a part thereof, if it appears that a partition cannot be made without great prejudice to the owners. Real and personal property may be partitioned in the same action.

Source:

C. Civ. P. 1877, § 548; R.C. 1895, § 5795; R.C. 1899, § 5795; R.C. 1905, § 7404; C.L. 1913, § 8024; R.C. 1943, § 32-1601; S.L. 1963, ch. 250, § 1.

Derivation:

Wait’s (N.Y.) Code, 448; Harston’s (Cal.) Practice, 752.

Notes to Decisions

Applicability.

Partition is available only where there are two or more cotenants with current possessory interests in the property. Treiber v. Citizens State Bank, 1999 ND 130, 598 N.W.2d 96, 1999 N.D. LEXIS 150 (N.D. 1999).

Partition is not available against the holders of remainder interests. Treiber v. Citizens State Bank, 1999 ND 130, 598 N.W.2d 96, 1999 N.D. LEXIS 150 (N.D. 1999).

Contribution Among Cotenants.

Where one cotenant failed to pay his share of expenses of the property and a second cotenant paid all the expenses, and the nonpaying cotenant had not failed to make contribution to the paying cotenant within a reasonable time, the nonpaying cotenant’s failure to pay did not constitute an abandonment of his interest and, in a partition action, the nonpaying cotenant was allowed to retain his interest in the property by making contribution, along with interest, to the paying cotenant. Eastman v. Nelson, 319 N.W.2d 134, 1982 N.D. LEXIS 274 (N.D. 1982).

Forced Purchase.

District court erred in dividing the land and ordering the partner to buy out the estate’s share of the farm machinery, because the district court’s equitable powers in partition actions did not include the power to order one party to buy out the other party’s share of jointly owned property; the authority to make compensatory adjustment between the respective parties was not equated with the authority to require a party to purchase property the party did not wish to purchase when the remedy of a forced sale was available, as the complexities of the remedy of a forced purchase were too great and the appellate court was unwilling to imply a power to require such a remedy without specific statutory authority akin to the existing statutory authority to require a forced sale. Estate of Wenzel v. Wenzel, 2008 ND 68, 747 N.W.2d 103, 2008 N.D. LEXIS 64 (N.D. 2008).

Partition in Kind.

Partition in kind is preferred. First Trust Co. v. Mast, 385 N.W.2d 104, 1986 N.D. LEXIS 297 (N.D. 1986).

Review.

Where trial court was in better position to resolve details of accounting for informal family farming operation and setoffs for a multitude of disputed claims, decision of trial court would not be held clearly erroneous. Bauch v. Bauch, 1997 ND 89, 563 N.W.2d 108, 1997 N.D. LEXIS 90 (N.D. 1997).

Right to Partition.

Partition is a matter of right when several cotenants are in possession of real property as tenants in common. Schnell v. Schnell, 346 N.W.2d 713, 1984 N.D. LEXIS 270 (N.D. 1984).

Partition is a matter of right between cotenants. First Trust Co. v. Mast, 385 N.W.2d 104, 1986 N.D. LEXIS 297 (N.D. 1986).

District court erred in denying a son’s motion to compel discovery of his mother’s medical records because they were relevant to mental capacity and undue influence issues, particularly where the siblings relied on the absence of medical records to attack the son’s claims; the validity of the quitclaim deed the mother executed was relevant because without it, the condominium would have been administered by her estate, and the son could not have legally occupied it without permission. Nelson v. Nelson, 2018 ND 212, 917 N.W.2d 479, 2018 N.D. LEXIS 219 (N.D. 2018).

District court’s findings in a partition action were not clearly erroneous because (1) the findings were consistent with the applicable legal standard, and (2) it was not clear error to find partition would cause great prejudice to siblings, as the proceeds from ordering a partition of two-thirds of the subject property to the siblings were approximately 15% less than ordering a sale of the whole, and there was no bright-line rule declaring a decrease in value by a certain percentage was a serious pecuniary injury. Rieger v. Ackerman, 2020 ND 49, 939 N.W.2d 413, 2020 N.D. LEXIS 44 (N.D. 2020).

North Dakota Supreme Court declines to adopt a bright-line rule in partition actions declaring a decrease in value due to a sale of the subject land by a certain percentage constitutes a serious pecuniary injury. Rieger v. Ackerman, 2020 ND 49, 939 N.W.2d 413, 2020 N.D. LEXIS 44 (N.D. 2020).

Title to Undivided Share of Land.

Plaintiff in partition must have a clear and undisputed title to an undivided share of the land of which partition is sought. Coyle v. Due, 28 N.D. 400, 149 N.W. 122, 1914 N.D. LEXIS 125 (N.D. 1914).

Collateral References.

Partition 10-33.

59A Am. Jur. 2d, Partition, §§ 78-81.

68 C.J.S. Partition, §§ 25-30, 32-69.

Timber rights as subject to partition, 21 A.L.R.2d 618.

Lease given by part only of cotenants, partition as affected by, 49 A.L.R.2d 797, 823.

Grant of part of cotenancy land, taken from less than all cotenants, as subject of protection through partition, 77 A.L.R.2d 1376.

Contractual provisions as affecting right to judicial partition, 37 A.L.R.3d 962.

Oil and gas: right to partition of overriding royalty interest in oil and gas leasehold, 58 A.L.R.3d 1052.

Law Reviews.

Severed Mineral Interests, 51 N.D. L. Rev. 369 (1975).

North Dakota Supreme Court Review, 76 N.D. L. Rev. 451 (2000).

32-16-02. What complaint must show.

The interests of all persons in the property, whether such persons are known or unknown, must be set forth in the complaint specifically and particularly as far as known to the plaintiff, and if one or more of the parties, or the share or quantity of interest of any of the parties, is unknown to the plaintiff, or is uncertain, or contingent, or the ownership of the inheritance depends upon an executory devise, or the remainder is a contingent remainder so that such parties cannot be named, that fact must be set forth in the complaint.

Source:

C. Civ. P. 1877, § 549; R.C. 1895, § 5796; R.C. 1899, § 5796; R.C. 1905, § 7405; C.L. 1913, § 8025; R.C. 1943, § 32-1602.

Derivation:

Wait’s (N.Y.) Code, 448; Harston’s (Cal.) Practice, 753.

Collateral References.

Partition 55.

59A Am. Jur. 2d, Partition, §§ 101 et seq.

68 C.J.S. Partition, §§ 98-103.

Incidental relief, pleading in partition action to authorize, 11 A.L.R.2d 1449.

32-16-03. Necessary parties — Only interests of record.

No person having a conveyance of, or claiming a lien on, the property, or some part of it, need be made a party to the action, unless such conveyance or lien appears of record.

Source:

C. Civ. P. 1877, § 550; R.C. 1895, § 5797; R.C. 1899, § 5797; R.C. 1905, § 7406; C.L. 1913, § 8026; R.C. 1943, § 32-1603.

Derivation:

Harston’s (Cal.) Practice, 754.

Collateral References.

Partition 45-50.

59A Am. Jur. 2d, Partition, §§ 90 et seq.

68 C.J.S. Partition, §§ 82-89.

Spouse of living co-owner of interest in property as necessary or proper party to partition action, 57 A.L.R.2d 1166.

32-16-04. Lis pendens required.

Immediately after filing the complaint in the district court, the plaintiff must record in the office of the recorder of the county, or of the several counties in which the property is situated, a notice of the pendency of the action, containing the names of the parties, so far as known, the object of the action, and a description of the property to be affected thereby. From the time of filing such notice for record, all persons shall be deemed to have notice of the pendency of the action.

Source:

C. Civ. P. 1877, § 551; R.C. 1895, § 5798; R.C. 1899, § 5798; R.C. 1905, § 7407; C.L. 1913, § 8027; R.C. 1943, § 32-1604; S.L. 2001, ch. 120, § 1.

Derivation:

Harston’s (Cal.) Practice, 755.

32-16-05. To whom summons directed.

The summons must be directed to all the joint tenants and tenants in common and all persons having an interest in or any lien of record by mortgage, judgment, or otherwise upon the property or upon any particular portion thereof, and generally to all persons unknown who have or claim any interest in the property.

Source:

C. Civ. P. 1877, § 552; R.C. 1895, § 5799; R.C. 1899, § 5799; R.C. 1905, § 7408; C.L. 1913, § 8028; R.C. 1943, § 32-1605.

Derivation:

Harston’s (Cal.) Practice, 756.

Notes to Decisions

Trustees.

Since the effective set of deeds in the chain of title leading up to plat recognized the undivided interest in one of three trustees as the only trustee holding legal title to the property, and since only that trustee joined in the plat for the lots later sold for nonpayment of taxes, trial court correctly found that only notifying that named, sole trustee holding legal title as co-owner among six “apparent record title owners,” was sufficient. Van Raden Homes v. Dakota View Estates, 546 N.W.2d 843, 1996 N.D. LEXIS 124 (N.D. 1996).

Unknown Parties.

The provision of this section directing the summons upon all persons unknown applies only in the case of service by publication. Schmidt v. Frank, 140 N.W.2d 588, 1966 N.D. LEXIS 189 (N.D. 1966).

Collateral References.

Partition 51.

59A Am. Jur. 2d, Partition, §§ 99, 100.

68 C.J.S. Partition, §§ 90-92.

32-16-06. Service by publication — Notice required.

When service of the summons is made by publication, the summons as published must be accompanied by a notice that the object of the action is to obtain a partition of the property which is the subject of the action, briefly describing the same.

Source:

C. Civ. P. 1877, § 553; R.C. 1895, § 5800; R.C. 1899, § 5800; R.C. 1905, § 7409; C.L. 1913, § 8029; R.C. 1943, § 32-1606.

Derivation:

Harston’s (Cal.) Practice, 757.

Notes to Decisions

Service of Summons by Publication.

The language of this section indicates that service in a partition action need not always be by publication. Schmidt v. Frank, 140 N.W.2d 588, 1966 N.D. LEXIS 189 (N.D. 1966).

Collateral References.

Partition 51.

59A Am. Jur. 2d, Partition, §§ 99, 100.

68 C.J.S. Partition, § 89.

32-16-07. Requisites of answers.

The defendants who have been served personally with the summons and a copy of the complaint, or who have appeared without such service, must set forth in their answer, fully and particularly, the origin, nature, and extent of their respective interests in the property, and if such defendants claim a lien on the property by mortgage, judgment, or otherwise, they must state the original amount and date of the same, and the sum remaining due thereon, whether the same has been secured in any other way or not, and, if secured, the nature and extent of such security, or they are deemed to have waived their right to such lien.

Source:

C. Civ. P. 1877, § 554; R.C. 1895, § 5801; R.C. 1899, § 5801; R.C. 1905, § 7410; C.L. 1913, § 8030; R.C. 1943, § 32-1607.

Derivation:

Harston’s (Cal.) Practice, 758.

Collateral References.

Partition 56.

59A Am. Jur. 2d, Partition, §§ 106, 107.

32-16-08. Title, proofs, and judgment.

The rights of the several parties, plaintiff as well as defendant, may be put in issue, tried, and determined in such action, and when a sale of the premises is necessary, the title must be ascertained by proof to the satisfaction of the court before the judgment of sale can be made, and when service of the complaint has been made by publication, like proof must be required of the right of the absent or unknown parties before such judgment is rendered, except that when there are several unknown persons having an interest in the property their rights may be considered together in the action as not between themselves.

Source:

C. Civ. P. 1877, § 555; R.C. 1895, § 5802; R.C. 1899, § 5802; R.C. 1905, § 7411; C.L. 1913, § 8031; R.C. 1943, § 32-1608.

Derivation:

Harston’s (Cal.) Practice, 759.

Collateral References.

Partition 62, 63.

59A Am. Jur. 2d, Partition, §§ 113, 114.

Relief against cotenant for rents and profits or use and occupation as an incident of or adjustment in partition, 51 A.L.R.2d 388, 454.

Compensation, in partition proceedings, for improvements made or placed on premises of another by mistake, 57 A.L.R.2d 263, 294.

Counsel fees in suit for partition, allowance of, as affected by improvements on land, 94 A.L.R.2d 575.

32-16-09. When partial partition adjudged.

Whenever from any cause in the opinion of the court it is impracticable or highly inconvenient to make a complete partition in the first instance among all the parties in interest, the court first may ascertain and determine the shares or interests respectively held by the original cotenants and thereupon adjudge and cause a partition to be made as if such original cotenants were the parties and sole parties in interest and the only parties to the action, and thereafter may proceed in like manner to adjudge and make partition separately of each share or portion so ascertained or allotted as between those claiming under the original tenant to whom the same shall have been so set apart, or may allow them to remain tenants in common thereof as they may desire.

Source:

C. Civ. P. 1877, § 556; R.C. 1895, § 5803; R.C. 1899, § 5803; R.C. 1905, § 7412; C.L. 1913, § 8032; R.C. 1943, § 32-1609.

Derivation:

Harston’s (Cal.) Practice, 760.

32-16-10. Referee to determine outstanding liens.

If it appears to the court, by the certificate of the recorder, or the clerk of the district court, or by the verified statement of any person who may have examined or searched the records, that there are outstanding liens or encumbrances of record upon the real property, or any part or portion thereof, which existed and were of record at the time of the commencement of the action, and the persons holding such liens are not made parties to the action, the court either must order such persons to be made parties to the action by an amended or supplemental complaint, or must appoint a referee to ascertain whether or not such liens or encumbrances have been paid, or, if not paid, what amount remains due thereon, and their order among the liens or encumbrances severally held by such persons and the parties to the action, and whether the amount remaining due thereon has been secured in any manner and, if secured, the nature and extent of the security.

Source:

C. Civ. P. 1877, § 557; R.C. 1895, § 5804; R.C. 1899, § 5804; R.C. 1905, § 7413; C.L. 1913, § 8033; R.C. 1943, § 32-1610; S.L. 2001, ch. 120, § 1.

Derivation:

Harston’s (Cal.) Practice, 761.

32-16-11. Notice to appear before referee — Service — Report.

The plaintiff must cause a notice to be served a reasonable time previous to the day for appearance before the referee, appointed as provided in section 32-16-10, on each person having outstanding liens of record, who is not a party to the action, to appear before the referee at a specified time and place to make proof, by such person’s own affidavit or otherwise, of the amount due or to become due contingently or absolutely thereon. In case such person is absent or such person’s residence is unknown, service may be made by publication or notice to such person’s agent under the direction of the court in such manner as may be proper. The report of the referee thereupon must be made to the court and must be confirmed, modified, or set aside and a new reference ordered as the justice of the case may require.

Source:

C. Civ. P. 1877, § 558; R.C. 1895, § 5805; R.C. 1899, § 5805; R.C. 1905, § 7414; C.L. 1913, § 8034; R.C. 1943, § 32-1611.

Derivation:

Harston’s (Cal.) Practice, 762.

32-16-12. Sale or partition.

If it is alleged in the complaint and established by evidence, or if it appears by the evidence without such allegation in the complaint, to the satisfaction of the court, that the property, or any part of it, is so situated that partition cannot be made without great prejudice to the owners, the court may order a sale thereof. Otherwise, upon the making of requisite proof, it must order a partition according to the respective rights of the parties as ascertained by the court and appoint three referees therefor, and must designate the portion to remain undivided for the owners whose interests remain unknown or unascertained.

Source:

C. Civ. P. 1877, § 559; R.C. 1895, § 5806; R.C. 1899, § 5806; R.C. 1905, § 7415; C.L. 1913, § 8035; R.C. 1943, § 32-1612.

Derivation:

Harston’s (Cal.) Practice, 763.

Notes to Decisions

Burden of Proof.

The burden of proving that partition in kind cannot be made without great prejudice is on the party demanding the sale of the property. Schnell v. Schnell, 346 N.W.2d 713, 1984 N.D. LEXIS 270 (N.D. 1984).

Partition by Sale.

It was not error to order partition by sale of a waste water treatment facility because (1) the facility was designed to serve 500 people, (2) the two cities who signed a contract to build and maintain the facility each had more than 500 people, (2) it was not practicable to repair or update the facility, and (3) the separate parts of the facility had no individual value. City of Harwood v. City of Reiles Acres, 2015 ND 33, 859 N.W.2d 13, 2015 N.D. LEXIS 21 (N.D. 2015).

District court did not abuse its discretion in removing a son from property and in granting a sibling sole authority to handle the sale of the property because the son, a cotenant who ousted his other cotenants, had no absolute right to remain on the property pending its sale. Nelson v. Nelson, 2018 ND 212, 917 N.W.2d 479, 2018 N.D. LEXIS 219 (N.D. 2018).

Partition in Kind Favored.

The law favors partition in kind where it can be made without great prejudice to the parties, and, unless great prejudice is shown, a presumption prevails that partition in kind should be made. Schnell v. Schnell, 346 N.W.2d 713, 1984 N.D. LEXIS 270 (N.D. 1984).

Prejudice to the Owners.

Factors considered in determining if great prejudice would result by partition in kind include: possible pecuniary gain or loss of each alternative; efficient management of the property; the situation of the parties and their respective financial abilities, including the financial ability of one of the parties to purchase the property at a sale; the location and character of the property; the size and respective shares of the parties if a partition in kind would be made; the availability of other land to avoid or reduce a loss where the issue involves the question of whether the property is physically divisible and can it be partitioned in kind without great pecuniary loss; a proposal by one owner to lease the land back to another owner; and, although subordinate to the pecuniary interests of the parties, sentimental reasons, particularly in the preservation of a home. Schnell v. Schnell, 346 N.W.2d 713, 1984 N.D. LEXIS 270 (N.D. 1984).

Brother did not appear at the evidentiary hearing to refute evidence introduced by the siblings that a partition in kind could not be made without great prejudice to the owners; great prejudice to the owners would result if an attempt were made to divide the farmland into three separate parcels, and the siblings met their burden of proving that a partition in kind could not be made without great prejudice to the owners. Schmidt v. Wittinger, 2004 ND 189, 687 N.W.2d 479, 2004 N.D. LEXIS 317 (N.D. 2004).

Unknown Parties.

The last sentence of this section clearly indicates that the reference in N.D.C.C. § 32-16-05 to unknown parties is to parties who are real rather than speculative. Schmidt v. Frank, 140 N.W.2d 588, 1966 N.D. LEXIS 189 (N.D. 1966).

Collateral References.

Partition 76-79, 91.

59A Am. Jur. 2d, Partition, §§ 131 et seq.

68 C.J.S. Partition, §§ 163 et seq.

Boundaries: rights and remedies of one purchasing at partition sale where there was misrepresentation or mistake as to acreage or location of boundaries of tract sold, 69 A.L.R.2d 254.

Contractual provisions as affecting right to judicial partition, 37 A.L.R.3d 962.

Trust arising from parol agreement to bid in property sold at partition sale for person having an interest therein, 27 A.L.R.2d 1285.

32-16-13. Method and rule of partition.

In making the partition, referees must divide the property and allot the several portions thereof to the respective parties, quality and quantity relatively considered, according to the respective rights of the parties as determined by the court, pursuant to the provisions of this chapter, designating the several portions by proper landmarks, and may employ a surveyor with the necessary assistants to aid them. Before making partition or sale the referees, whenever it will be for the advantage of those interested, may set apart a portion of the property for a way, road, or street, and the portion so set apart shall not be assigned to any of the parties, nor sold, but shall remain an open and public way, road, or street, unless the referees shall set the same apart as a private way for the use of the parties interested, or some of them, their heirs or assigns, in which case it shall remain such private way.

Source:

C. Civ. P. 1877, § 560; R.C. 1895, § 5807; R.C. 1899, § 5807; R.C. 1905, § 7416; C.L. 1913, § 8036; R.C. 1943, § 32-1613.

Derivation:

Harston’s (Cal.) Practice, 764.

Notes to Decisions

Compensation for Improvements.

A cotenant’s claim for compensation for improvements should not be allowed where they were not necessary or assented to by his cotenants, they were for the personal benefit of the person making them, and the rents of the premises for the time he possessed them more than offset the value of the improvements. Gjerstadengen v. Hartzell, 9 N.D. 268, 83 N.W. 230 (N.D. 1900).

32-16-14. Referee’s report.

The referees must make a report of their proceedings, specifying therein the manner in which they executed their trust, and describing the property divided and the share allotted to each party with a particular description of each share.

Source:

C. Civ. P. 1877, § 561; R.C. 1895, § 5808; R.C. 1899, § 5808; R.C. 1905, § 7417; C.L. 1913, § 8037; R.C. 1943, § 32-1614.

Derivation:

Harston’s ( Cal.) Practice, 765.

Collateral References.

Partition 94.

59A Am. Jur. 2d, Partition, §§ 123 et seq.

32-16-15. Judgment on report — Effect.

The court may confirm, change, modify, or set aside the report of the referees and, if necessary, may appoint new referees. Upon the confirmation of the report, judgment must be rendered that such partition be effectual forever, and such judgment shall be binding and conclusive:

  1. On all persons named as parties to the action and their legal representatives, who at the time have any interest in the property divided, or any part thereof, as owners in fee, or as tenants for life, or for years, or as entitled to the reversion, remainder, or the inheritance of such property, or any part thereof, after the determination of a particular estate therein, and who by any contingency may be entitled to a beneficial interest in the property, or who have an interest in any undivided share thereof as tenants for years or for life.
  2. On all persons interested in the property, who may be unknown, to whom notice has been given in the action for partition by publication.
  3. On all other persons claiming from such parties or persons, or either of them.

No judgment is invalidated by reason of the death of any party before final judgment or decree, but such judgment or decree is as conclusive against the heirs, legal representatives, or assigns of such decedent as if it had been entered before the decedent’s death.

Source:

C. Civ. P. 1877, § 562; R.C. 1895, § 5809; R.C. 1899, § 5809; R.C. 1905, § 7418; C.L. 1913, § 8038; R.C. 1943, § 32-1615.

Derivation:

Harston’s (Cal.) Practice, 766.

Notes to Decisions

Partition Without Referee’s Report.

Where, in an action for partition, the court-appointed referee failed to make a report, the court could not properly issue its final order for partition on the basis of an appraiser’s report which was not made a part of the trial record, and a partition so made would not stand. Schmidt v. Frank, 140 N.W.2d 588, 1966 N.D. LEXIS 189 (N.D. 1966).

Collateral References.

Partition 94(3), 95.

59A Am. Jur. 2d, Partition, § 130.

32-16-16. What tenants not affected.

The judgment does not affect tenants for years, less than ten, to the whole of the property which is the subject of the partition.

Source:

C. Civ. P. 1877, § 563; R.C. 1895, § 5810; R.C. 1899, § 5810; R.C. 1905, § 7419; C.L. 1913, § 8039; R.C. 1943, § 32-1616.

Derivation:

Harston’s (Cal.) Practice, 767.

32-16-17. Payment of expenses.

The expenses of the referees, including those of a surveyor and the surveyor’s assistants, when employed, must be ascertained and allowed by the court, and the amount thereof, together with the fees allowed by the court in its discretion to the referees, must be apportioned among the different parties to the action equitably.

Source:

C. Civ. P. 1877, § 564; R.C. 1895, § 5811; R.C. 1899, § 5811; R.C. 1905, § 7420; C.L. 1913, § 8040; R.C. 1943, § 32-1617.

Derivation:

Harston’s (Cal.) Practice, 768.

32-16-18. Liens follow owner’s share.

When a lien is on an undivided interest or estate of any party, such lien, if partition is made, thenceforth shall be a charge only on the share assigned to such party, but such share first must be charged with its just proportion of the costs of the partition, in preference to such lien.

Source:

C. Civ. P. 1877, § 565; R.C. 1895, § 5812; R.C. 1899, § 5812; R.C. 1905, § 7421; C.L. 1913, § 8041; R.C. 1943, § 32-1618.

Derivation:

Harston’s (Cal.) Practice, 769.

32-16-19. Certain estates set off.

When a part of the property only is ordered to be sold, if there is an estate for life or years in an undivided share of the whole property, such estate may be set off in any part of the property not ordered to be sold.

Source:

C. Civ. P. 1877, § 566; R.C. 1895, § 5813; R.C. 1899, § 5813; R.C. 1905, § 7422; C.L. 1913, § 8042; R.C. 1943, § 32-1619.

Derivation:

Harston’s (Cal.) Practice, 770.

32-16-20. How proceeds of encumbered property applied.

The proceeds of the sale of encumbered property must be applied under the direction of the court as follows:

  1. To pay its just proportion of the general costs of the action.
  2. To pay the costs of the reference.
  3. To satisfy and cancel of record the several liens in their order of priority, by payment of the sums due and to become due, and the amount due to be verified by affidavit at the time of payment.
  4. The residue among the owners of the property sold, according to their respective shares therein.

Source:

C. Civ. P. 1877, § 567; R.C. 1895, § 5814; R.C. 1899, § 5814; R.C. 1905, § 7423; C.L. 1913, § 8043; R.C. 1943, § 32-1620.

Derivation:

Harston’s (Cal.) Practice, 771.

32-16-21. Lienor having other security.

Whenever any party to an action who holds a lien upon the property, or any part thereof, has other security for the payment of the amount of such lien, the court in its discretion may order such security to be exhausted before distribution of the proceeds of sale, or may order a just deduction to be made from the amount of the lien on the property on account thereof.

Source:

C. Civ. P. 1877, § 568; R.C. 1895, § 5815; R.C. 1899, § 5815; R.C. 1905, § 7424; C.L. 1913, § 8044; R.C. 1943, § 32-1621.

Derivation:

Harston’s (Cal.) Practice, 772.

32-16-22. Distribution by referee.

The proceeds of sale and the securities taken by the referees, or any part thereof, must be distributed by them to the persons entitled thereto, whenever the court so directs. In case no direction is given, all of such proceeds and securities must be paid into court, or deposited therein, or as directed by the court.

Source:

C. Civ. P. 1877, § 569; R.C. 1895, § 5816; R.C. 1899, § 5816; R.C. 1905, § 7425; C.L. 1913, § 8045; R.C. 1943, § 32-1622.

Derivation:

Harston’s (Cal.) Practice, 773.

32-16-23. Part of action continued.

When the proceeds of the sale of any share or parcel belonging to persons who are parties to the action, and who are known, are paid into court, the action may be continued as between such parties for the determination of their respective claims thereto, which must be ascertained and adjudged by the court. Further testimony may be taken in court, or by a referee, at the discretion of the court, and the court, if necessary, may require such parties to present the facts or law in the controversy by pleading as in an original action.

Source:

C. Civ. P. 1877, § 570; R.C. 1895, § 5817; R.C. 1899, § 5817; R.C. 1905, § 7426; C.L. 1913, § 8046; R.C. 1943, § 32-1623.

Derivation:

Harston’s (Cal.) Practice, 774.

32-16-24. How sales made.

All sales of real property made by referees under this chapter must be made at public auction to the highest bidder upon notice published in the manner required for the sale of real property on execution. The notice must state the terms of sale and if the property, or any part of it, is to be sold subject to a prior estate, charge, or lien, that must be stated in the notice.

Source:

C. Civ. P. 1877, § 571; R.C. 1895, § 5818; R.C. 1899, § 5818; R.C. 1905, § 7427; C.L. 1913, § 8047; R.C. 1943, § 32-1624.

Derivation:

Harston’s (Cal.) Practice, 775.

Collateral References.

Partition 102.

59A Am. Jur. 2d, Partition, §§ 131 et seq.

68 C.J.S. Partition, §§ 163 et seq.

Estoppel of or waiver by parties or participants regarding irregularities or defects in partition sale, 2 A.L.R.2d 6, 78.

Boundaries: rights and remedies of one purchasing at partition sale where there was misrepresentation or mistake as to acreage or location of boundaries of tract sold, 69 A.L.R.2d 254.

32-16-25. Terms of sale fixed by court.

The court, in the order for sale, must direct the terms of credit which may be allowed for the purchase money of any portion of the real property of which it may direct a sale on credit and for that portion of which the purchase money is required to be invested for the benefit of unknown owners, infants, and owners out of the state.

Source:

C. Civ. P. 1877, § 572; R.C. 1895, § 5819; R.C. 1899, § 5819; R.C. 1905, § 7428; C.L. 1913, § 8048; R.C. 1943, § 32-1625.

Derivation:

Harston’s (Cal.) Practice, 776.

32-16-26. Security for purchase money.

The referees may take separate mortgages and other securities for the whole or convenient portions of the purchase money, on such parts of the property as are directed by the court to be sold on credit for the shares of any known owner of full age, in the name of such owner, and for the shares of an infant, in the name of the guardian or conservator, if any, of such infant, and for other shares, in the name of the clerk of the district court, and the clerk’s successors in office.

Source:

C. Civ. P. 1877, § 573; R.C. 1895, § 5820; R.C. 1899, § 5820; R.C. 1905, § 7429; C.L. 1913, § 8049; R.C. 1943, § 32-1626; S.L. 1973, ch. 257, § 37.

Derivation:

Harston’s (Cal.) Practice, 777.

32-16-27. Estate for life or years — Compensation.

The person entitled to a tenancy for life or years, whose estate has been sold, is entitled to receive such sum as may be deemed a reasonable satisfaction for such estate which the person so entitled may consent, by an instrument in writing filed with the clerk of the court, to accept in lieu of such estate. Upon the filing of such consent, the clerk must enter the same in the minutes of the court.

Source:

C. Civ. P. 1877, § 574; R.C. 1895, § 5821; R.C. 1899, § 5821; R.C. 1905, § 7430; C.L. 1913, § 8050; R.C. 1943, § 32-1627.

Derivation:

Harston’s (Cal.) Practice, 778.

32-16-28. Compensation when consent not given.

If such consent is not given, filed, and entered as provided in section 32-16-27 at or before a judgment of sale is rendered, the court must ascertain and determine what proportion of the proceeds of the sale, after deducting expenses, will be a just and reasonable sum to be allowed on account of such estate, and must order the same to be paid to such party or deposited in court for that party, as the case may require.

Source:

C. Civ. P. 1877, § 575; R.C. 1895, § 5822; R.C. 1899, § 5822; R.C. 1905, § 7431; C.L. 1913, § 8051; R.C. 1943, § 32-1628.

Derivation:

Harston’s (Cal.) Practice, 779.

32-16-29. Compensation when tenant unknown.

If the person entitled to such estate for life or years is unknown, the court may provide for the protection of the person’s rights in the same manner, as far as may be, as if the person was known and had appeared.

Source:

C. Civ. P. 1877, § 576; R.C. 1895, § 5823; R.C. 1899, § 5823; R.C. 1905, § 7432; C.L. 1913, § 8052; R.C. 1943, § 32-1629.

Derivation:

Harston’s (Cal.) Practice, 780.

32-16-30. Value of future estates settled by court.

In all cases of sales, when it appears that any person has a vested or contingent or future right or estate in any of the property sold, the court must ascertain and settle the proportionate value of such contingent or vested right or estate and must direct such proportion of the proceeds of the sale to be invested, secured, or paid over in such manner as will protect the rights and interests of the parties.

Source:

C. Civ. P. 1877, § 577; R.C. 1895, § 5824; R.C. 1899, § 5824; R.C. 1905, § 7434; C.L. 1913, § 8053; R.C. 1943, § 32-1630.

Derivation:

Harston’s (Cal.) Practice, 781.

32-16-31. Terms of sale made known at time of sale — Separate parcels.

In all cases of sales of property the terms must be made known at the time of sale, and if the premises consist of distinct farms or lots, they must be sold separately.

Source:

C. Civ. P. 1877, § 578; R.C. 1895, § 5825; R.C. 1899, § 5825; R.C. 1905, § 7434; C.L. 1913, § 8054; R.C. 1943, § 32-1631.

Derivation:

Harston’s (Cal.) Practice, 782.

32-16-32. Who can purchase.

No referee, nor any person for the benefit of any referee, can be interested in the purchase of any real property which is the subject of the action. Neither can any guardian or conservator of an infant party to such action be interested in the purchase of such property except for the benefit of the infant. All sales contrary to the provisions of this section are void.

Source:

C. Civ. P. 1877, § 579; R.C. 1895, § 5826; R.C. 1899, § 5826; R.C. 1905, § 7435; C.L. 1913, § 8055; R.C. 1943, § 32-1632; S.L. 1973, ch. 257, § 38.

Derivation:

Harston’s (Cal.) Practice, 783.

Collateral References.

Partition 103.

59A Am. Jur. 2d, Partition, § 139.

68 C.J.S. Partition, § 184.

32-16-33. Report of sale.

After completing a sale of property, or any part thereof, ordered to be sold, the referees must report the same to the court, with a description of the different parcels of land sold to each purchaser, the name of the purchaser, the price paid or secured, the terms and conditions of the sale, and the securities, if any, taken. The report must be filed in the office of the clerk of the district court where the action is pending.

Source:

C. Civ. P. 1877, § 580; R.C. 1895, § 5827; R.C. 1899, § 5827; R.C. 1905, § 7436; C.L. 1913, § 8056; R.C. 1943, § 32-1633.

Derivation:

Harston’s (Cal.) Practice, 784.

32-16-34. Order to convey.

If the sale is confirmed by the court, an order must be entered directing the referees to execute conveyances and take securities pursuant to such sale. Such order also may give directions to them respecting the disposition of the proceeds of sale.

Source:

C. Civ. P. 1877, § 581; R.C. 1895, § 5828; R.C. 1899, § 5828; R.C. 1905, § 7437; C.L. 1913, § 8057; R.C. 1943, § 32-1634.

Derivation:

Harston’s (Cal.) Practice, 785.

Notes to Decisions

Appealable Order.

In partition action, an order confirming sale of land and directing referee to execute conveyances is final and appealable under N.D.C.C. § 28-27-02(5), since it involves merits of “some part of the action”. Fettig v. Fettig, 176 N.W.2d 523, 1970 N.D. LEXIS 89 (N.D. 1970).

Collateral References.

Partition 106, 110.

68 C.J.S. Partition, §§ 193, 213.

32-16-35. Interested party may apply share on purchase price.

When a party entitled to a share of the property, or an encumbrancer entitled to have that encumbrancer’s lien paid out of the sale, becomes a purchaser, the referees may take their receipt for so much of the proceeds of the sale as belongs to them.

Source:

C. Civ. P. 1877, § 582; R.C. 1895, § 5829; R.C. 1899, § 5829; R.C. 1905, § 7438; C.L. 1913, § 8058; R.C. 1943, § 32-1635.

Derivation:

Harston’s (Cal.) Practice, 786.

32-16-36. Record and bar of conveyance.

The conveyance must be recorded in the county where the premises are situated, and shall be a bar against all persons interested in the property in any way who shall have been named as parties in the action, and against all such parties and persons as were unknown, if the summons was served by publication, and against all persons claiming under them, or either of them, and against all persons having unrecorded deeds or liens at the commencement of the action.

Source:

C. Civ. P. 1877, § 583; R.C. 1895, § 5830; R.C. 1899, § 5830; R.C. 1905, § 7439; C.L. 1913, § 8059; R.C. 1943, § 32-1636.

Derivation:

Harston’s (Cal.) Practice, 787.

32-16-37. Investment of unknown owner’s or nonresident’s share.

If there are proceeds of a sale belonging to an unknown owner or to a person without the state who has no legal representative within it, the proceeds must be invested in bonds of the United States for the benefit of the persons entitled thereto.

Source:

C. Civ. P. 1877, § 584; R.C. 1895, § 5831; R.C. 1899, § 5831; R.C. 1905, § 7440; C.L. 1913, § 8060; R.C. 1943, § 32-1637.

Derivation:

Harston’s (Cal.) Practice, 788.

32-16-38. Securities taken in name of clerk.

When security for the proceeds of a sale is taken, or when an investment of any proceeds is made, it must be done, except as herein otherwise provided, in the name of the clerk of the district court of the county where the papers are filed, and the clerk’s successors in office, who must hold the same for the use and benefit of the parties interested, subject to the order of the court.

Source:

C. Civ. P. 1877, § 585; R.C. 1895, § 5832; R.C. 1899, § 5832; R.C. 1905, § 7441; C.L. 1913, § 8061; R.C. 1943, § 32-1638.

Derivation:

Harston’s (Cal.) Practice, 789.

32-16-39. Securities — When taken — The name of parties.

When security is taken by the referees on a sale, and the parties interested in such security, by an instrument in writing under their hands delivered to the referees, agree upon the shares and proportions to which they respectively are entitled, or when shares and proportions previously have been adjudged by the court, such securities must be taken in the names of and must be payable to the parties respectively entitled thereto, and must be delivered to such parties upon their receipts therefor. Such agreement and receipts must be returned and filed with the clerk.

Source:

C. Civ. P. 1877, § 586; R.C. 1895, § 5833; R.C. 1899, § 5833; R.C. 1905, § 7442; C.L. 1913, § 8062; R.C. 1943, § 32-1639.

Derivation:

Harston’s (Cal.) Practice, 790.

32-16-40. Clerk’s duty.

The clerk of the district court in whose name a security is taken, or by whom an investment is made, and the clerk’s successor in office, must receive the interest and principal as it becomes due and apply and invest the same as the court may direct, and must deposit with the county treasurer all securities taken, and, in a book provided and kept for that purpose in the clerk’s office, must keep an account, free for inspection by all persons, of investments and moneys received by the clerk thereon, and the disposition thereof.

Source:

C. Civ. P. 1877, § 587; R.C. 1895, § 5834; R.C. 1899, § 5834; R.C. 1905, § 7443; C.L. 1913, § 8063; R.C. 1943, § 32-1640.

Derivation:

Harston’s (Cal.) Practice, 791.

32-16-41. Compensation for inequality.

When it appears that the partition cannot be made equal between the parties according to their respective rights without prejudice to the rights and interests of some of them, and a partition is ordered, the court may adjudge compensation to be made by one party to another on account of the inequality, but such compensation shall not be required to be made to others by owners unknown, nor by an infant, unless it appears that such infant has personal property sufficient for that purpose and that the infant’s interest will be promoted thereby. In all cases, the court has power to make compensatory adjustment between the respective parties according to the ordinary principles of equity.

Source:

C. Civ. P. 1877, § 588; R.C. 1895, § 5835; R.C. 1899, § 5835; R.C. 1905, § 7444; C.L. 1913, § 8064; R.C. 1943, § 32-1641.

Derivation:

Harston’s (Cal.) Practice, 792.

Notes to Decisions

Equal Partition.

Trial court’s findings supported an equal partition of the parties’ real and personal property where both parties contributed equally to the acquisition of assets such that the estate had to be divided equally and each party was entitled to 50 percent of the equity. McKechnie v. Berg, 2003 ND 136, 667 N.W.2d 628, 2003 N.D. LEXIS 149 (N.D. 2003).

Forced Purchase.

District court erred in dividing the land and ordering the partner to buy out the estate’s share of the farm machinery, because the district court’s equitable powers in partition actions did not include the power to order one party to buy out the other party’s share of jointly owned property; the authority to make compensatory adjustment between the respective parties was not equated with the authority to require a party to purchase property the party did not wish to purchase when the remedy of a forced sale was available, as the complexities of the remedy of a forced purchase were too great and the appellate court was unwilling to imply a power to require such a remedy without specific statutory authority akin to the existing statutory authority to require a forced sale. Estate of Wenzel v. Wenzel, 2008 ND 68, 747 N.W.2d 103, 2008 N.D. LEXIS 64 (N.D. 2008).

32-16-42. To whom infant’s share paid.

When the share of an infant is sold, the proceeds of the sale may be paid by the referees making the sale to the infant’s guardian or conservator, if the infant has one, or as provided in section 30.1-26-03, or to the guardian ad litem appointed for the infant in the action, upon the guardian ad litem giving the security required by law or directed by order of the court.

Source:

C. Civ. P. 1877, § 589; R.C. 1895, § 5836; R.C. 1899, § 5836; R.C. 1905, § 7445; C.L. 1913, § 8065; R.C. 1943, § 32-1642; S.L. 1973, ch. 257, § 39.

Derivation:

Harston’s (Cal.) Practice, 793.

32-16-43. Share of insane and incompetent.

The guardian or conservator who may be entitled to the custody and management of the estate of an insane person, or other person adjudged incapable of conducting the person’s own affairs, whose interest in real property has been sold, may receive in behalf of such person such person’s share of the proceeds of such real property from the referees, on executing, with sufficient sureties, an undertaking approved by a judge of the court, that the guardian or conservator will discharge faithfully the trust imposed in the guardian or conservator, and will render a true and just account to the person entitled thereto or to that person’s legal representative.

Source:

C. Civ. P. 1877, § 590; R.C. 1895, § 5837; R.C. 1899, § 5837; R.C. 1905, § 7446; C.L. 1913, § 8066; R.C. 1943, § 32-1643; S.L. 1973, ch. 257, § 40.

Derivation:

Harston’s (Cal.) Practice, 794.

32-16-44. Guardian may consent to partition without action. [Repealed]

Repealed by S.L. 1973, ch. 257, § 82.

32-16-45. Costs, fees, and disbursements.

The costs of a partition, including reasonable counsel fees, expended by the plaintiff or any of the defendants, for the common benefit, fees of referees, and other disbursements, must be paid by the parties respectively entitled to share in the lands divided in proportion to their respective interests therein and may be included and specified in the judgment. In that case they shall be a lien on the several shares, and the judgment may be enforced by execution against such shares and against other property held by the respective parties. When, however, litigation arises between some of the parties only, the court may require the expense of such litigation to be paid by the parties thereto, or any of them.

Source:

C. Civ. P. 1877, § 592; R.C. 1895, § 5839; R.C. 1899, § 5839; R.C. 1905, § 7448; C.L. 1913, § 8068; R.C. 1943, § 32-1645.

Derivation:

Harston’s (Cal.) Practice, 796.

Notes to Decisions

Attorney Fees and Costs Denied.

Because the trial court found that the property had to be divided equally, it did not err in ruling that the parties were responsible for their own attorney’s fees and costs. McKechnie v. Berg, 2003 ND 136, 667 N.W.2d 628, 2003 N.D. LEXIS 149 (N.D. 2003).

Attorney Fees and Costs Proper.

Where trial court ordered a partition sale of subject property with the net proceeds to be divided equally among its three cotenants, and the court divided the cost of the partition sale among the cotenants in proportion to their respective interests in the property, attorneys fees and costs were properly taxed in accordance with N.D.C.C. § 32-16-45 despite defendant’s allegation that said division of costs and attorney’s fees was inappropriate in light of the adversarial posture of the case. Schmidt v. Wittinger, 2004 ND 189, 687 N.W.2d 479, 2004 N.D. LEXIS 317 (N.D. 2004).

Collateral References.

Partition 114.

59A Am. Jur. 2d, Partition, §§ 148-151, 180 et seq.

68 C.J.S. Partition, §§ 220 et seq.

Attorney’s fees, allowance and apportionment of, 94 A.L.R.2d 575.

Amount of attorney’s compensation in absence of contract or statute fixing amount, 57 A.L.R.3d 475.

Excessiveness or adequacy of attorneys’ fess in matters involving real estate—modern cases, 10 A.L.R.5th 448.

Method of calculating attorneys’ fees awarded in common-fund or common-benefit cases — state cases, 56 A.L.R.5th 107.

32-16-46. Single referee.

The court, with the consent of the parties or when the complaint petitions and prays for the appointment of a single referee and there is no objection thereto, may appoint a single referee instead of three referees in the proceeding under this chapter, and the single referee, when thus appointed, has all the powers and may perform all the duties of the three referees.

Source:

C. Civ. P. 1877, § 593; R.C. 1895, § 5840; R.C. 1899, § 5840; R.C. 1905, § 7449; C.L. 1913, § 8069; R.C. 1943, § 32-1646; S.L. 1963, ch. 250, § 2.

Derivation:

Harston’s (Cal.) Practice, 797.

32-16-47. Abstract of title — How cost paid.

If it appears to the court that it was necessary to have made an abstract of the title to the property to be partitioned, and such abstract shall have been procured by the plaintiff, or if the plaintiff shall have failed to have the same made before the commencement of the action, and any of the defendants shall have had such abstract afterwards made, the cost of the abstract, with interest thereon, from the time the same is subject to the inspection of the respective parties, must be allowed and taxed. Whenever such abstract is produced by the plaintiff before the commencement of the action, the plaintiff must file with the complaint a notice that an abstract of the title has been made and is subject to the inspection and use of all the parties to the action, designating therein where the abstract will be kept for inspection. If the plaintiff shall have failed to procure such abstract before commencing the action and any defendant shall procure the same to be made, the defendant, as soon as the defendant has directed it to be made, shall file a notice thereof in the action with the clerk of the court, stating who is making the same and where it will be kept when finished. The court or the judge thereof may direct, from time to time during the progress of the action, who shall have the custody of the abstract.

Source:

C. Civ. P. 1877, § 594; R.C. 1895, § 5841; R.C. 1899, § 5841; R.C. 1905, § 7450; C.L. 1913, § 8070; R.C. 1943, § 32-1647.

Derivation:

Harston’s (Cal.) Practice, 799.

32-16-48. Interest on disbursements.

Whenever during the progress of the action for partition any disbursements shall have been made under the direction of the court by a party thereto, interest must be allowed thereon from the time of making such disbursements.

Source:

C. Civ. P. 1877, § 596; R.C. 1895, § 5843; R.C. 1899, § 5843; R.C. 1905, § 7452; C.L. 1913, § 8072; R.C. 1943, § 32-1648.

Derivation:

Harston’s (Cal.) Practice, 801.

32-16-49. Buyouts.

Notwithstanding any other provision of law, if the court determines property subject to a partition action under section 32-16-01 is held by two or more cotenants in which one or more cotenants have an estate of inheritance, and a sale of the property is requested by one or more cotenant or is required to avoid an inequitable partition, the court shall appoint a referee to obtain an appraisal to determine the fair market value of the property. Upon the determination of the fair market value of the property, the court shall notify all parties to the partition action of the determination and amount of the appraisal. Upon receipt of the appraisal, a cotenant may purchase all interests of cotenants requesting a sale of the property, at the appraised fair market value of the selling cotenant’s fractional interest in the property. If more than one cotenant offers to purchase the interests of the cotenants requesting a sale of the property, the court shall equitably allocate the interests among the purchasing cotenants.

Source:

S.L. 2019, ch. 278, § 2, eff August 1, 2019.

CHAPTER 32-17 Actions to Quiet Title and Determine Claims to Real Estate

32-17-01. Action to determine adverse claims.

An action may be maintained by any person having an estate or an interest in, or lien or encumbrance upon, real property, whether in or out of possession thereof and whether such property is vacant or unoccupied, against any person claiming an estate or interest in, or lien or encumbrance upon, the same, for the purpose of determining such adverse estate, interest, lien, or encumbrance.

Source:

C. Civ. P. 1877, § 635; R.C. 1895, § 5904; R.C. 1899, § 5904; S.L. 1901, ch. 5, § 1; R.C. 1905, § 7519; C.L. 1913, § 8144; R.C. 1943, § 32-1701.

Derivation:

Wait’s (N.Y.) Code, 449, 455; Harston’s (Cal.) Practice, 738.

Cross-References.

Action by county to quiet title to lands acquired through tax deed, see N.D.C.C. § 57-30-01.

Action by person to test validity of tax deed, see N.D.C.C. §§ 57-45-10, 57-45-11.

Notes to Decisions

Constitutionality.

The statute providing for actions to determine adverse claims is not unconstitutional on the ground that it embraces more than one subject. Eaton v. Guarantee Co., 11 N.D. 79, 88 N.W. 1029, 1902 N.D. LEXIS 180 (N.D. 1902).

“Action to Quiet Title” Defined.

A suit to set aside a conveyance and to remove the cloud of foreclosure proceedings is an action to quiet title. Nelson v. Walrod, 53 N.D. 409, 206 N.W. 218, 1925 N.D. LEXIS 89 (N.D. 1925), cert. denied, 273 U.S. 745, 47 S. Ct. 449, 71 L. Ed. 870, 1927 U.S. LEXIS 828 (U.S. 1927).

Administrator.
—Maintenance of Action.

Where the possession or determination of the title to the real estate of the deceased is necessary for purposes of administration, the administrator, as representative of the estate, possesses an interest sufficient to entitle him to maintain an action to determine adverse claims. Magoffin v. Watros, 45 N.D. 406, 178 N.W. 134, 1920 N.D. LEXIS 138 (N.D. 1920).

Answer of Defendant.

In an action to determine adverse claims, the court must determine all claims set forth in defendant’s answer, and failure to do so is error. Spencer v. Beiseker, 15 N.D. 140, 107 N.W. 189, 1906 N.D. LEXIS 98 (N.D. 1906).

Beneficial Owner.
—Maintenance of Action.

The beneficial owner of land may maintain an action to determine adverse claims. Dalrymple v. Security Loan & Trust Co., 9 N.D. 306, 83 N.W. 245, 1900 N.D. LEXIS 242 (N.D. 1900).

City.
—Maintenance of Action.

A city may maintain an action to determine the rights of the party who claims title in fee to the streets, parks, and alleys dedicated to public use. La Moure v. Lasell, 26 N.D. 638, 145 N.W. 577, 1914 N.D. LEXIS 156 (N.D. 1914).

Counterclaim.

In an action to determine adverse claims, the defendant, in addition to a denial of plaintiff’s title, may allege facts showing title in himself, and may ask that such title be quieted and confirmed in him, such new matter constituting a counterclaim. Power v. Bowdle, 3 N.D. 107, 54 N.W. 404, 21 L.R.A. 328, 44 Am. St. Rep. 511 (1893), decided prior to the enactment of § 57-0202, NDRC 1943 (see now N.D.C.C. § 57-02-02); distinguished, Buxton v. Sargent, 7 N.D. 503, 75 N.W. 811, 1898 N.D. LEXIS 93 (N.D. 1898).

In an action to quiet title, the defendant sets up a counterclaim if he alleges that he owns the land and prays that the title be quieted in him. Betts v. Signor, 7 N.D. 399, 75 N.W. 781, 1898 N.D. LEXIS 81 (N.D. 1898).

Crops.

In an action to determine adverse claims brought by a vendor under a land contract, the plaintiff cannot recover, after severance of the crop, both for the value of the crop raised after forfeiture and for the use and occupation of the land. Golden Valley Land & Cattle Co. v. Johnstone, 21 N.D. 101, 128 N.W. 691, 1910 N.D. LEXIS 145 (N.D. 1910).

Ejectment.

An action to determine adverse claims to and for the possession of real estate is maintainable to the same effect as the common-law action for ejectment. Burke v. Scharf, 19 N.D. 227, 124 N.W. 79, 1909 N.D. LEXIS 105 (N.D. 1909); Ottow v. Friese, 20 N.D. 86, 126 N.W. 503, 1910 N.D. LEXIS 67 (N.D. 1910); Udgaard v. Schindler, 75 N.D. 625, 31 N.W.2d 776, 1948 N.D. LEXIS 89 (N.D. 1948).

Equitable Action.

An action to determine adverse claims to real property is essentially an action in equity. O'Neil v. Tyler, 3 N.D. 47, 53 N.W. 434, 1892 N.D. LEXIS 9 (N.D. 1892); Northwestern Mut. Sav. & Loan Ass'n v. Hanson, 72 N.D. 629, 10 N.W.2d 599, 1943 N.D. LEXIS 102 (N.D. 1943); Udgaard v. Schindler, 75 N.D. 625, 31 N.W.2d 776, 1948 N.D. LEXIS 89 (N.D. 1948); Neset v. Rudman, 74 N.W.2d 826, 1956 N.D. LEXIS 91 (N.D. 1956).

Heir.
—Maintenance of Action.

An heir may maintain an action to determine adverse claims even where the estate of decedent is in the progress of administration. Hoffman v. Hoffman's Heirs, 73 N.D. 637, 17 N.W.2d 903, 1945 N.D. LEXIS 80 (N.D. 1945).

Joint Plaintiffs.

In an action to determine adverse claims to a homestead, a wife may be joined with the husband as a joint plaintiff, though the legal title stands in the husband’s name. Sexton v. Sutherland, 37 N.D. 500, 164 N.W. 278, 1917 N.D. LEXIS 133 (N.D. 1917).

Judgment.

A denial of plaintiff’s title or right to maintain an action to determine adverse claims to real estate precludes an entry of judgment on motion, although the defendant’s adverse claim fails. Larson v. Christiansen, 14 N.D. 476, 106 N.W. 51, 1905 N.D. LEXIS 96 (N.D. 1905).

A valid judgment obtained in an action to quiet title against an unknown person is not subject to collateral attack by a successor in interest of such unknown person in a subsequent action to quiet title. Smith v. Mountrail County, 70 N.W.2d 518, 1955 N.D. LEXIS 109, 1955 N.D. LEXIS 110 (N.D. 1955).

A judgment in an action to recover real property brought under the code of North Dakota is not a bar to a subsequent action where the defense is founded on the title acquired subsequent to the judgment. Northern Pac. R.R. v. Smith, 69 F. 579 (8th Cir. 1895).

Liens.

The statute authorizes a lienor to maintain an action to determine adverse claims against property. Blakemore v. Roberts, 12 N.D. 394, 96 N.W. 1029, 1903 N.D. LEXIS 42 (N.D. 1903).

If a mechanic’s lien has been foreclosed and title acquired, the judgment cannot be questioned in a collateral proceeding. Bovey, Shute & Jackson v. Odegaard, 53 N.D. 871, 208 N.W. 111, 1925 N.D. LEXIS 16 (N.D. 1925).

A creditor who attached property fraudulently transferred, and obtained judgment conferring a lien on the debtor’s interest, thereafter could maintain an action to determine adverse claims. Holden v. Walker, 63 N.D. 372, 248 N.W. 318, 1933 N.D. LEXIS 192 (N.D. 1933).

Lis Pendens.

Borrowers were not entitled to quiet title on certain mineral leases pursuant to N.D.C.C. § 32-17-01 because the leases were subject to an agreement under which the borrowers granted to the lender a net profits royalty interest from any production of the leases and a lis pendens was filed based on damage claims that arose from the duty to take the leases for the benefit of the lender. Macquarie Bank v. Knickel, 723 F. Supp. 2d 1161, 2010 U.S. Dist. LEXIS 65844 (D.N.D. 2010), aff'd, 793 F.3d 926, 2015 U.S. App. LEXIS 12356 (8th Cir. N.D. 2015).

Minor.

In an action against a minor to determine adverse claims, the minor may assert and establish his right to redeem from tax sale. McDonald v. Abraham, 75 N.D. 457, 28 N.W.2d 582, 1947 N.D. LEXIS 83 (N.D. 1947).

Misjoinder of Causes.

In an action to determine adverse claims, a demurrer to the complaint because of misjoinder of causes of action cannot be sustained if the facts stated constitute only one cause of action, although demands for relief are inconsistent. Golden Valley Land & Cattle Co. v. Johnstone, 21 N.D. 97, 128 N.W. 690, 1910 N.D. LEXIS 144 (N.D. 1910).

Notice.

In an action to quiet title, publication of the summons without a description of the land is insufficient notice to an unknown adverse claimant. Fenton v. Minnesota Title Ins. & Trust Co., 15 N.D. 365, 109 N.W. 363, 1906 N.D. LEXIS 92 (N.D. 1906).

A judgment in an action to quiet title is void as to those not named in the published summons, and who are not personally served and who do not appear in the action. SKJELBRED v. SHAFER, 15 N.D. 539, 108 N.W. 487, 1906 N.D. LEXIS 64 (N.D. 1906).

Possession Under Color of Title.

Possession under color of title is adverse and the occupant’s title becomes material only when he who challenges it shows in himself a right superior to the right of the possessor. SAILER v. MERCER CTY., 77 N.D. 698, 45 N.W.2d 206, 1950 N.D. LEXIS 165 (N.D. 1950).

Priority of Claims.

Defendant’s title is material only after the plaintiff has shown a right in himself superior to the defendant’s right. Hannah v. Chase, 4 N.D. 351, 61 N.W. 18, 1894 N.D. LEXIS 43 (N.D. 1894).

In an action to quiet title the claims of the defendants are directly challenged and it is the duty of the court to determine the validity, superiority, and priority of the claims of the parties. State v. Amerada Petroleum Corp., 71 N.W.2d 675, 1955 N.D. LEXIS 127 (N.D. 1955).

Proof of Facts.
—In General.

A defendant must allege and prove facts upon which an adverse claim is based. SHUTTUCK v. SMITH, 6 N.D. 56, 69 N.W. 5, 1896 N.D. LEXIS 9 (N.D. 1896).

A plaintiff must recover in an action to quiet title upon the strength of his own title, and not upon the weakness of the defendant’s title. Conrad v. Adler, 13 N.D. 199, 100 N.W. 722, 1904 N.D. LEXIS 44 (N.D. 1904); SAILER v. MERCER CTY., 77 N.D. 698, 45 N.W.2d 206, 1950 N.D. LEXIS 165 (N.D. 1950); State v. Rosenquist, 78 N.D. 671, 51 N.W.2d 767, 1952 N.D. LEXIS 70 (N.D. 1952).

Before the plaintiff becomes entitled to have an adverse title quieted, he must show that he is entitled to maintain the action. Larson v. Christiansen, 14 N.D. 476, 106 N.W. 51, 1905 N.D. LEXIS 96 (N.D. 1905).

The plaintiff need not prove that the defendant in fact asserts some estate or interest in or lien or encumbrance upon real property. Klemmens v. First Nat'l Bank, 22 N.D. 304, 133 N.W. 1044, 1911 N.D. LEXIS 63 (N.D. 1911).

In an action to quiet title, where title was traced to a common source, determination of claims should be permitted without an attack on the title of that common source. Shuck v. Shuck, 77 N.D. 628, 44 N.W.2d 767, 1950 N.D. LEXIS 158 (N.D. 1950).

—Delivery of Deed.

In an action to determine adverse claims, a grantee asserting the title has the burden of proving constructive delivery of deeds. Magoffin v. Watros, 45 N.D. 406, 178 N.W. 134, 1920 N.D. LEXIS 138 (N.D. 1920).

—Resulting Trust.

In an action to determine adverse claims, where plaintiff asserts a title as vendee, under a contract for deed, and where the appellant, under a general denial, seeks to defeat the title of the plaintiff by reason of a resulting trust and a conveyance to defraud creditors, it is incumbent upon the appellant to establish such resulting trust or conveyance by clear, substantial, and satisfactory proof. Bernauer v. McCaull-Webster Elevator Co., 41 N.D. 561, 171 N.W. 282, 1919 N.D. LEXIS 88 (N.D. 1919).

Relief Granted.

This section provides for a satisfactory action to determine adverse claims and remove clouds on title. It affords such relief as is prescribed within the scope of the statute. The scope of that relief is not diminished by the fact that other relief may be available in the form of an appeal from administrative action. Mueller v. Mercer County, 60 N.W.2d 678, 1953 N.D. LEXIS 104 (N.D. 1953).

In an action to determine adverse claims, affirmative relief may be granted to remove a cloud which results from a title that cannot be asserted or enforced because of circumstances creating an estoppel. Neset v. Rudman, 74 N.W.2d 826, 1956 N.D. LEXIS 91 (N.D. 1956).

District court properly denied the claimants' motion to vacate the stipulated judgments—that they had no financial or ownership interest in the minerals at issue—and in granting summary judgment to the owners in their quiet title action because the only argument addressed (and rejected) by the district court was whether the claimants could be relieved from the stipulated judgments inasmuch as they were not represented by counsel and did not fully understand the consequences of their stipulations, the claimants did not have, nor could they claim, an interest in the minerals where they expressly disclaimed any interests in them in their stipulations, and the resulting judgments stated that they had no claim in them. Sorenson v. Bakken Invs. LLC, 2017 ND 127, 895 N.W.2d 302, 2017 N.D. LEXIS 126 (N.D. 2017).

State.
—Maintenance of Action.

The state has a right to bring an action to quiet title to any real estate in which it claims an interest. State v. Amerada Petroleum Corp., 71 N.W.2d 675, 1955 N.D. LEXIS 127 (N.D. 1955).

Sufficiency of Complaint.

Unless the complaint in an action to determine adverse claims alleges that the plaintiff has an estate or interest or lien or encumbrance upon the real property involved in the action, it fails to state a cause of action. State v. Rosenquist, 78 N.D. 671, 51 N.W.2d 767, 1952 N.D. LEXIS 70 (N.D. 1952).

Tenant Holding over.

Claim of a former tenant or lessee holding over after termination or forfeiture of lease is adverse to that of lessor. Udgaard v. Schindler, 75 N.D. 625, 31 N.W.2d 776, 1948 N.D. LEXIS 89 (N.D. 1948).

Venue.

If a person having a lien upon a tract of land brings an action to determine adverse claims, the action must be brought in the county in which the land is situated. Cavalier County v. Gestson, 75 N.D. 657, 31 N.W.2d 787, 1948 N.D. LEXIS 91, 1948 N.D. LEXIS 92 (N.D. 1948).

Verdict of Jury.

An action to quiet title is purely equitable and the verdict of a jury is advisory only. O'Neil v. Tyler, 3 N.D. 47, 53 N.W. 434, 1892 N.D. LEXIS 9 (N.D. 1892).

Wife.
—Maintenance of Action.

A wife, who abandoned homestead right which she once had prior to commencement of action to determine adverse claims, had no right, title, or interest in the land and no right to maintain an action to quiet title with respect thereto. Neset v. Rudman, 74 N.W.2d 826, 1956 N.D. LEXIS 91 (N.D. 1956).

DECISIONS UNDER PRIOR LAW

Liens.

In an action to quiet title, only estates and interests in the land could be litigated, and a mere lien thereon could not be investigated over the objection of either party. Buxton v. Sargent, 7 N.D. 503, 75 N.W. 811, 1898 N.D. LEXIS 93 (N.D. 1898).

It was not the duty of the court in an action to quiet title under R.C. 1899, § 5904, to consider and pass upon a tax lien set out by answer, but which did not arise from a tax sale. McHenry v. Kidder County, 8 N.D. 413, 79 N.W. 875 (1899), decided prior to the 1905 amendment to R.C. 1899, § 5904 (R.C. 1905, § 7519)(see now this section).

Collateral References.

Quieting Title 1-26.

65 Am. Jur. 2d, Quieting Title and Determination of Adverse Claims, §§ 1 et seq.

74 C.J.S. Quieting Title, §§ 1-54, 56, 62.

Maintainability, by lessee, of action to quiet title to leasehold, 51 A.L.R.2d 1227.

Sufficiency of showing, in establishing boundary by parol agreement, that boundary was uncertain or in dispute before agreement, 72 A.L.R.4th 132.

Law Reviews.

Cancellation of Land Contracts, 32 N.D. L. Rev. 5 (1956).

32-17-02. Use and occupation — Waste — Pleading — Possession.

A recovery may be had in the action by any party against a defendant personally served or who has appeared, or against the plaintiff, for the value of the use and occupation of the premises and for the value of the property wasted or removed therefrom, in the case of a vendor holding over, or a trespasser, as well as in a case in which the relation of vendor and vendee has existed. If such recovery is desired by the plaintiff, the plaintiff shall allege the fact, stating particularly the value of the use and occupation, the value of the property wasted or removed, and the value of the real property aside from the waste or removal, and shall demand appropriate relief in the complaint. A recovery of possession also may be had by the plaintiff or any defendant asking for affirmative relief.

Source:

C. Civ. P. 1877, § 636; R.C. 1895, § 5905; R.C. 1899, § 5905; S.L. 1901, ch. 5, § 1; R.C. 1905, § 7520; C.L. 1913, § 8145; R.C. 1943, § 32-1702.

Derivation:

Harston’s (Cal.) Practice, 739.

Notes to Decisions

Counterclaim.

Under the provisions of N.D.C.C. § 32-17-08, a defendant in an action to quiet title may set forth as a counterclaim his demand for recovery of the value of the use and occupation of the premises according to the mode of procedure provided by this section. Belakjon v. Hilstad, 76 N.D. 298, 35 N.W.2d 637, 1949 N.D. LEXIS 57 (N.D. 1949).

Limitation of Recovery.

Plaintiff cannot recover both the value of the use and occupation and the crop or damages equaling its value. Golden Valley Land & Cattle Co. v. Johnstone, 21 N.D. 101, 128 N.W. 691, 1910 N.D. LEXIS 145 (N.D. 1910).

Liquidated Damages Provision.

Vendor’s recovery for waste was not precluded by liquidated damages clause contained in the contract for deed as, regardless of how expansive the terms of a contract may be, its coverage can only extend to those events which the parties intended, and to conclude that the parties intended the liquidated damages provision to cover waste would require an unreasonable interpretation of the contract, which is prohibited by section 9-07-18. Meyer v. Hansen, 373 N.W.2d 392, 1985 N.D. LEXIS 373 (N.D. 1985).

A provision for liquidated damages will not prevent recovery for actual damages for events which are not covered by the liquidated damages clause, unless the contract expressly provides that damages other than those enumerated shall not be recovered. Meyer v. Hansen, 373 N.W.2d 392, 1985 N.D. LEXIS 373 (N.D. 1985).

Measurement of Damages for Waste.

Given the absence of an express legislative pronouncement, and given that the object of an award of damages is to compensate without unjust enrichment, there should be no exclusive test for measuring property damage for waste. Rather, the mode and amount of proof must be adapted to the facts of each case. Meyer v. Hansen, 373 N.W.2d 392, 1985 N.D. LEXIS 373 (N.D. 1985).

Depending on the facts of each case, either diminution in value or cost of repair is the appropriate measure of damages for waste. Plaintiff has the right to elect the measure deemed more accurate and if the defendant disagrees, he has the burden to prove the alternative measure is more appropriate. Meyer v. Hansen, 373 N.W.2d 392, 1985 N.D. LEXIS 373 (N.D. 1985).

Tenant Holding over.

An action to determine adverse claims will lie to recover possession of real property from a lessee who holds over after the termination or forfeiture of his lease. Udgaard v. Schindler, 75 N.D. 625, 31 N.W.2d 776, 1948 N.D. LEXIS 89 (N.D. 1948).

Collateral References.

Quieting Title 33-36, 48-51.

65 Am. Jur. 2d, Quieting Title and Determination of Adverse Claims, §§ 34 et seq., 69-72.

32-17-03. Joinder of plaintiffs.

Any two or more persons having an estate or interest in, or lien or encumbrance upon, real property, under a common source of title, whether holding as tenants in common, joint tenants, copartners, or in severalty, may unite in an action against any person claiming an adverse estate or interest therein, or lien or encumbrance thereon, for the purpose of determining such adverse claim, or establishing such common source of title, or declaring the same to be held in trust, or of removing a cloud upon the same.

Source:

C. Civ. P. 1877, § 639; R.C. 1895, § 5908; R.C. 1899, § 5908; S.L. 1901, ch. 5, § 1; R.C. 1905, § 7521; C.L. 1913, § 8146; R.C. 1943, § 32-1703.

Derivation:

Harston’s (Cal.) Practice, 381, 384.

Notes to Decisions

Husband and Wife.

A wife is a proper party plaintiff in an action instituted by her husband to determine adverse claims to homestead. Sexton v. Sutherland, 37 N.D. 500, 164 N.W. 278, 1917 N.D. LEXIS 133 (N.D. 1917).

Collateral References.

Quieting Title 30.

65 Am. Jur. 2d, Quieting Title and Determination of Adverse Claims, §§ 65-68.

74 C.J.S. Quieting Title, § 61.

Common source of title doctrine, 5 A.L.R.3d 375.

32-17-04. Complaint form — Description of property.

In an action for the determination of adverse claims, the property must be described in the complaint with such certainty as to enable an officer upon execution to identify it. In other respects the complaint, exclusive of the venue, title, subscription, and verification, may be substantially in the following form, the blanks being properly filled:

The plaintiff for claim for relief shows to the court that the plaintiff has an estate or interest in, or a lien or encumbrance upon, as the case may be, the following described real property, situated in the above-named county and state, to wit: That the defendants claim certain estates or interests in, or liens or encumbrances upon, the same, as the case may be, adverse to the plaintiff. (Here allege the facts concerning use and occupation and value thereof, and any property wasted or removed and the value thereof, if pertinent. Where the state is named as a party defendant, the complaint must state the interest the state or its agencies or departments might have in the property; or in the alternative state that the complainant is not aware of any specific interest that the state might have in the property.)

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Wherefore, the plaintiff prays:

  1. That the defendants be required to set forth all their adverse claims to the property above described, and that the validity, superiority, and priority thereof be determined.
  2. That the same be adjudged null and void, and that they be decreed to have no estate or interest in, or lien or encumbrance upon, said property.
  3. That this title be quieted as to such claim, and that defendants be forever debarred and enjoined from further asserting the same.
  4. That the plaintiff recover possession of the premises described, if possession is desired.
  5. That the plaintiff recover  _________  dollars as the value of the use and occupation and value of property wasted and removed therefrom.
  6. That the plaintiff have such other general relief as may be just, together with costs and disbursements.

Source:

C. Civ. P. 1877, § 637; R.C. 1895, § 5906; R.C. 1899, § 5906; S.L. 1901, ch. 5, § 1; R.C. 1905, § 7522; C.L. 1913, § 8147; 1925 Supp., § 8147; R.C. 1943, § 32-1704; S.L. 1965, ch. 233, § 1; 1985, ch. 82, § 78.

Notes to Decisions

Cost Bond.

In an action to determine adverse claims to real property, where state claimed some interest in the land, the complaint was not demurrable because it failed to plead the filing of an undertaking to pay any judgment for costs. Brye v. Greenfield, 70 N.D. 597, 296 N.W. 746, 1941 N.D. LEXIS 205 (N.D. 1941).

Counterclaim.

In an action to determine adverse claims, where a counterclaim is interposed by defendant asserting title in himself adverse and superior to that of the plaintiff, the defendant becomes as to his claim of title, in effect, a plaintiff and the court must determine and adjudicate the claims set forth in the counterclaim even though plaintiff’s cause of action may fail. Jester v. Jester, 76 N.D. 517, 37 N.W.2d 879, 1949 N.D. LEXIS 74 (N.D. 1949).

Where a defendant in an action to quiet title answers and sets up his interest in or claim to the property involved and seeks affirmative relief by asking that his right or interest so pleaded be adjudged superior to the interest of the plaintiffs, the answer constitutes a counterclaim. Dixon v. Kaufman, 79 N.D. 633, 58 N.W.2d 797, 1953 N.D. LEXIS 69 (N.D. 1953).

Defendant’s Interest.

In an action to determine adverse claims, it is unnecessary to prove that the defendant asserts some estate or interest in, or lien upon, the real property in controversy. Klemmens v. First Nat'l Bank, 22 N.D. 304, 133 N.W. 1044, 1911 N.D. LEXIS 63 (N.D. 1911).

Description of Property.

The description of a plaintiff’s estate, interest, or lien, in an action to determine adverse claims, is sufficient to constitute a cause of action if in the statutory form. Northwestern Improvement Co. v. Oliver County, 38 N.D. 57, 164 N.W. 315, 1917 N.D. LEXIS 16 (N.D. 1917).

Equitable Nature.

While an action to determine adverse claims is one of statutory form, its nature is essentially equitable. Dixon v. Kaufman, 79 N.D. 633, 58 N.W.2d 797, 1953 N.D. LEXIS 69 (N.D. 1953); Neset v. Rudman, 74 N.W.2d 826, 1956 N.D. LEXIS 91 (N.D. 1956).

Judgment Against Property.

The owner of a homestead may sue to determine adverse claims and to quiet title against a judgment unenforceable against the premises. Birks v. Globe Int'l Protective Bureau, 56 N.D. 613, 218 N.W. 864, 1928 N.D. LEXIS 179 (N.D. 1928).

Ownership of Property.

A complaint in an action to quiet title must allege that the plaintiff is the owner of the land described. Ottow v. Friese, 20 N.D. 86, 126 N.W. 503, 1910 N.D. LEXIS 67 (N.D. 1910).

Sufficiency of Complaint.

The complaint in an action to determine adverse claims, which was approximately in the statutory form prescribed by this section, was sufficient and not vulnerable to attack by demurrer although it contained no particulars with respect to the title of the plaintiffs or the anticipated claims of defendants. Dixon v. Kaufman, 79 N.D. 633, 58 N.W.2d 797, 1953 N.D. LEXIS 69 (N.D. 1953).

Taxes.
—Payment or Tender.

The tender of taxes is not a condition precedent to the recovery of land held under a tax title. Farrington v. New Eng. Inv. Co., 1 N.D. 102, 45 N.W. 191 (1890); Power v. Larabee, 2 N.D. 141, 49 N.W. 724 (1891); O’Neil v. Tyler, 3 N.D. 47, 53 N.W. 434 (1892), decided prior to the enactment of § 57-0202, NDRC 1943 (see now this section); explained, Douglas v. Fargo, 13 N.D. 467, 101 N.W. 919, 1904 N.D. LEXIS 80 (N.D. 1904).

Where there is an utter absence of those things which are inherently essential to a valid tax, equity cannot require payment as a condition precedent to relief from the proceedings. State Fin. Co. v. Beck, 15 N.D. 374, 109 N.W. 357, 1906 N.D. LEXIS 90 (N.D. 1906).

Where the assessment of taxes is inherently defective, it is not essential to tender taxes justly due in order to maintain action to quiet title. State Fin. Co. v. Bowdle, 16 N.D. 193, 112 N.W. 76 (1907).

In an action to determine adverse claims to real property, the court may decree the payment of the amount of taxes due to the county at the date of such tax sale as a condition of granting relief, without the necessity of an offer to do so. Tee v. Noble, 23 N.D. 225, 135 N.W. 769, 1912 N.D. LEXIS 71 (N.D. 1912).

DECISIONS UNDER PRIOR LAW

Complaint Sufficient Against Demurrer.

In an action to determine adverse claims to real property, the complaint was sufficient as against demurrer by the state where it alleged that the state claimed some interest in the land, inferior to the interest of the plaintiff, and demanded that the state set forth a statement of its claim. Brye v. Greenfield, 70 N.D. 597, 296 N.W. 746, 1941 N.D. LEXIS 205 (N.D. 1941).

Collateral References.

Quieting Title 34-36.

65 Am. Jur. 2d, Quieting Title and Determination of Adverse Claims, §§ 69, 79.

74 C.J.S. Quieting Title, §§ 64-67.

32-17-05. Joinder of defendants.

In an action to determine adverse claims, all persons appearing of record to have estates or interests in, or liens or encumbrances upon, the property, and all persons in possession, may be joined as defendants, and all others may be joined by inserting in the title of the action the following: “All other persons unknown claiming any estate or interest in, or lien or encumbrance upon, the property described in the complaint”.

Source:

C. Civ. P. 1877, § 638; R.C. 1895, § 5907; S.L. 1899, ch. 157, § 1; R.C. 1899, § 5907; S.L. 1901, ch. 5, § 1; 1905, ch. 4, § 1; R.C. 1905, § 7523; C.L. 1913, § 8148; R.C. 1943, § 32-1705.

Collateral References.

Quieting Title 30.

65 Am. Jur. 2d, Quieting Title and Determination of Adverse Claims, §§ 65-68.

74 C.J.S. Quieting Title, § 62.

Notes to Decisions

Generally.

Parties to a quiet title action that does not name all necessary parties would be well advised to move for joinder under N.D. R. Civ. P. 19 so title can actually be quieted. Gerrity Bakken, LLC v. Oasis Petro. N. Am., LLC, 2018 ND 180, 915 N.W.2d 677, 2018 N.D. LEXIS 191 (N.D. 2018).

Quiet Title Appropriate.

District court did not err in quieting title in favor of an LLC where the minor name discrepancies did not affect the chain of title, and the LLC and its predecessors in interest had not been made parties to a prior quiet title action. Gerrity Bakken, LLC v. Oasis Petro. N. Am., LLC, 2018 ND 180, 915 N.W.2d 677, 2018 N.D. LEXIS 191 (N.D. 2018).

32-17-06. Who joined as unknown persons.

All persons having or claiming an estate or interest in, or lien or encumbrance upon, the property described in the complaint, whether as heirs, devisees, legatees, or personal representative of a deceased person, or under any other title or interest, and not in possession, nor appearing of record in the office of the recorder, the clerk of the district court, or the county auditor of the county in which the land is situated, to have such claim, title, or interest therein, may be proceeded against as persons unknown, and any order, judgment, or decree entered in the action shall be valid and binding on such unknown persons whether of age or minors, and on those claiming under them.

Source:

S.L. 1899, ch. 157, § 2; R.C. 1899, § 5907a; S.L. 1901, ch. 5, § 1; 1905, ch. 4, § 2; R.C. 1905, § 7524; C.L. 1913, § 8149; R.C. 1943, § 32-1706; S.L. 2001, ch. 120, § 1.

Notes to Decisions

Incompetent Persons.

Where interest of incompetent in land subject to quiet title action was shown of record in office of register of deeds [now recorder] of county in which action was venued and land was allegedly situated, summons naming unknown persons did not give court jurisdiction over person of incompetent or guardian, and thus judgment rendered in suit was not res judicata as to incompetent’s successors. Woodland v. Woodland, 147 N.W.2d 590, 1966 N.D. LEXIS 146 (N.D. 1966).

Persons Unknown.

Persons whose interest in the real property described in the complaint does not appear of record in the office of the register of deeds [now recorder], the clerk of the district court, or the county auditor, and who are not in possession, may be proceeded against as “persons unknown”. Stewart v. Berg, 65 N.W.2d 621, 1954 N.D. LEXIS 96 (N.D. 1954); Nystul v. Waller, 84 N.W.2d 584, 1957 N.D. LEXIS 137 (N.D. 1957).

In an action to quiet title, a corporation or person appearing of record as having a possible claim to, or interest in, the real property involved is a proper party to the action, and service upon such corporation or person as “unknown persons” is insufficient to give the court jurisdiction. Northern Pac. Ry. v. Advanced Realty Co., 78 N.W.2d 705, 1956 N.D. LEXIS 146 (N.D. 1956).

The fact that persons proceeded against as unknown persons, in an action to quiet title, may have a deceased ancestor whose interest does not appear of record and who was not joined as a party to the action, does not affect the validity of the proceedings against such unknown persons. Nystul v. Waller, 84 N.W.2d 584, 1957 N.D. LEXIS 137 (N.D. 1957).

32-17-07. Service on unknown defendants — How made — Affidavit for publication.

Service of the summons in an action may be had upon all unknown persons defendant by publication in the manner provided by law for service by publication upon defendants whose residence is unknown, but as to such unknown persons defendant the affidavit for publication shall be required to state in substance the following facts: That the interests of such unknown persons defendant in the land described in the complaint are not shown of record in the office of the recorder, the clerk of the district court, or the county auditor of the county in which such land lies, and the affiant does not know and is unable to ascertain the names, residences, or post-office addresses of any of the persons who are proceeded against as unknown persons defendant. The affidavit or complaint shall show further that the relief sought in the action consists wholly or partly in excluding the defendants from any interest in or lien upon specific real property in this state, and where jurisdiction is sought to be obtained against unknown persons under the provisions of this section, the summons shall state where the complaint is or will be filed, and there shall be subjoined to the summons as published a notice signed by the plaintiff’s attorney containing a description of the land to which such action relates. Unknown corporations and limited liability companies claiming interests are included within the word “persons” as used in this chapter.

Source:

S.L. 1899, ch. 157, § 2; R.C. 1899, § 5907a; S.L. 1901, ch. 5, § 1; 1905, ch. 4, § 2; R.C. 1905, § 7525; C.L. 1913, § 8150; R.C. 1943, § 32-1707; S.L. 1993, ch. 54, § 106; 2001, ch. 120, § 1.

Cross-References.

Service of process by publication, see N.D.R.Civ.P. 4(e)-(i).

Notes to Decisions

Affidavit for Publication.

Where the affidavit for publication used the word “respondents” instead of “defendants”, but conformed to the requirements of this section with respect to unknown defendants, it constituted a jurisdictional basis for the publication of summons, if properly filed. Bartell v. Morken, 65 N.W.2d 270, 1954 N.D. LEXIS 84 (N.D. 1954).

Where the affidavit for publication of summons has been properly drawn in accordance with statute and the other statutory provisions for securing service upon an unknown person or persons defendant have been strictly complied with, a judgment obtained in an action to quiet title is binding upon such unknown person or persons. Bartell v. Morken, 65 N.W.2d 270, 1954 N.D. LEXIS 84 (N.D. 1954); Smith v. Mountrail County, 70 N.W.2d 518, 1955 N.D. LEXIS 109, 1955 N.D. LEXIS 110 (N.D. 1955); Jensen v. Schwartz, 90 N.W.2d 716, 1958 N.D. LEXIS 80 (N.D. 1958).

Affidavit for the purpose of service by publication on behalf of the plaintiff may be made by his attorney. Jensen v. Schwartz, 90 N.W.2d 716, 1958 N.D. LEXIS 80 (N.D. 1958).

Affidavit for publication was not insufficient because no diligence was shown by the affiant in his attempt to find an unknown person. Jensen v. Schwartz, 90 N.W.2d 716, 1958 N.D. LEXIS 80 (N.D. 1958).

Grounds.

This section provides the grounds upon which service by publication may be obtained upon unknown persons defendant in an action to quiet title. Bartell v. Morken, 65 N.W.2d 270, 1954 N.D. LEXIS 84 (N.D. 1954); Smith v. Mountrail County, 70 N.W.2d 518, 1955 N.D. LEXIS 109, 1955 N.D. LEXIS 110 (N.D. 1955); Jensen v. Schwartz, 90 N.W.2d 716, 1958 N.D. LEXIS 80 (N.D. 1958).

Incompetent Persons.

Where interest of incompetent in land subject to quiet title action was shown of record in office of register of deeds [now recorder] of county in which action was venued and land was allegedly situated, summons naming unknown persons did not give court jurisdiction over person of incompetent or guardian, and thus judgment rendered in suit was not res judicata as to incompetent’s successors. Woodland v. Woodland, 147 N.W.2d 590, 1966 N.D. LEXIS 146 (N.D. 1966).

Interests Shown of Record.

Interests in real property disclosed only by documents in a trust file in the office of the clerk of the district court which are not shown by dockets or indices to affect the real property are not interests “shown of record in the office of the register of deeds [now recorder], the clerk of the district court, or the county auditor of the county in which such land lies” within the meaning of this section. Coverston v. Egeland, 69 N.W.2d 790, 1955 N.D. LEXIS 104 (N.D. 1955).

“Unknown Person” Defined.

A person whose interest in real property does not appear of record in the office of the register of deeds [now recorder], clerk of the district court, or the county auditor of the county in which the land lies, and who is out of possession, is an “unknown person”, within the meaning of this section, where the land is idle, unimproved, and vacant, and there is nothing to put a prudent person on notice of the interest of such person. Smith v. Mountrail County, 70 N.W.2d 518, 1955 N.D. LEXIS 109, 1955 N.D. LEXIS 110 (N.D. 1955).

32-17-08. Answer — Counterclaim.

In an action to determine adverse claims, a defendant in the defendant’s answer may deny that the plaintiff has the estate, interest, lien, or encumbrance alleged in the complaint, coupled with allegations setting forth fully and particularly the origin, nature, and extent of the defendant’s own claim to the property, and, if such defendant claims a lien, the original amount secured thereby and the date of the same, and the sum remaining due thereon, whether the same has been secured in any other way or not, and if so secured, the nature and extent of such security, or the defendant likewise may set forth the defendant’s rights in the property as a counterclaim and may demand affirmative relief against the plaintiff and any codefendant, and in such case the defendant also may set forth a counterclaim and recovery from a plaintiff or a codefendant for permanent improvements made by the defendant or those under whom the defendant claims, holding under color of title in good faith adversely to the plaintiff or codefendant against whom the defendant seeks a recovery. Such counterclaim shall set forth among other things the value of the land aside from the improvements thereon, and, as accurately as practicable, the improvements upon the land and the value thereof, and in such case such defendant also may set forth as a counterclaim the defendant’s demand for recovery of the value of the use and occupation of the premises and value of property wasted or removed therefrom. The answer shall be deemed served on codefendants by filing the same in the office of the clerk of court of the county where the action is pending at any time within twenty days after the service of summons on such defendant is complete. If affirmative relief is demanded against codefendants, the allegations constituting counterclaims shall be deemed controverted by all the parties, as upon a direct denial or avoidance, as the case may require, without further pleading.

Source:

C. Civ. P. 1877, §§ 641, 642; R.C. 1895, §§ 5910, 5911; R.C. 1899, §§ 5910, 5911; S.L. 1901, ch. 5, § 1; R.C. 1905, § 7526; C.L. 1913, § 8151; R.C. 1943, § 32-1708.

Derivation:

Harston’s (Cal.) Practice, 741.

Notes to Decisions

Color of Title.

Where a party places improvements upon land which he does not hold under color of title, he cannot recover for such improvements. Greeman v. Smith, 138 N.W.2d 433, 1965 N.D. LEXIS 111 (N.D. 1965).

There can be no color of title in an occupant who does not hold under any instrument, proceeding, or law purporting to transfer to him the title or to give him the right of possession. Lindvig v. Lindvig, 385 N.W.2d 466, 1986 N.D. LEXIS 301 (N.D. 1986).

This section bars a claim for the value of improvements by one who was not holding under color of title. Lindvig v. Lindvig, 385 N.W.2d 466, 1986 N.D. LEXIS 301 (N.D. 1986).

Counterclaim.

In action to quiet title to land where plaintiff’s demurrer to part of answer alleging an agreement with reference to the extension of the period of redemption from foreclosure sale could not be sustained, defendants were entitled to an opportunity to litigate their counterclaim based upon the failure of the plaintiff to perform that contract. Farmers State Bank v. Anton, 51 N.D. 202, 199 N.W. 582, 1924 N.D. LEXIS 161 (N.D. 1924).

Under the provisions of this section, a defendant in an action to quiet title may set forth as a counterclaim his demand for recovery of the value of the use and occupation of the premises according to the mode of procedure provided by N.D.C.C. § 32-17-02. Belakjon v. Hilstad, 76 N.D. 298, 35 N.W.2d 637, 1949 N.D. LEXIS 57 (N.D. 1949).

Failure to Answer.

In an action to determine adverse claims, individual defendants had the right to appear by attorney, even though in default of an answer, and challenge sufficiency of plaintiff’s proof offered and move for dismissal of plaintiff’s cause of action for failure of proof. Murphy v. Missouri & K. Land & Loan Co., 28 N.D. 519, 149 N.W. 957, 1914 N.D. LEXIS 140 (N.D. 1914).

Improvements.

An erection of improvements must be made in good faith. Hawke v. Deffenbach, 4 Dakota. 20, 22 N.W. 480 (1885), aff’d, 115 U.S. 392, 6 S. Ct. 95, 29 L. Ed. 423 (1885), distinguished, Pierce v. Sparks, 4 Dak. 1, 22 N.W. 491 (1885), aff’d, 115 U.S. 408, 6 S. Ct. 102, 29 L. Ed. 428 (1885), see also the Stock-Raising Homestead Act of 1916, 43 U.S.C. § 291 et seq.

A good faith claim of title to real estate must preceed the making of improvements to entitle the claimant to allowance therefor. McKenzie v. Gussner, 22 N.D. 445, 134 N.W. 33, 1911 N.D. LEXIS 65 (N.D. 1911).

Sufficiency of Answer.

Answer of defendant containing a bare denial of plaintiff’s alleged title was sufficient. Hebden v. Bina, 17 N.D. 235, 116 N.W. 85, 1908 N.D. LEXIS 41 (N.D. 1908).

Collateral References.

Quieting Title 37-39.

65 Am. Jur. 2d, Quieting Title and Determination of Adverse Claims, §§ 71, 72.

74 C.J.S. Quieting Title, §§ 68, 69.

32-17-09. Reply — What it may contain — Relief.

No reply shall be necessary on the part of the plaintiff, except when the defendant in the defendant’s answer claims a lien or encumbrance upon the property which, prior to the commencement of the action, was barred by the statutes of limitation, or which shall have been discharged in bankruptcy, or which constitutes only a cloud, the plaintiff may reply setting up such defense and availing plaintiff of the benefit thereof, and in all cases in which the plaintiff has made permanent improvements on the property in good faith, while in possession under color of title, the plaintiff may recover the reasonable value thereof as against the defendant recovering the property when the reply shall allege the facts, stating particularly the value of the improvements and the value of the property, and shall demand appropriate relief. The reply shall be served on such defendant and filed with the clerk within twenty days after the service of the defendant’s answer.

Source:

S.L. 1901, ch. 5, § 1; R.C. 1905, § 7527; S.L. 1909, ch. 3, § 1; C.L. 1913, § 8152; R.C. 1943, § 32-1709.

Notes to Decisions

Fraud.

In an action to quiet title, fraud is provable by the plaintiff against a claim or title set up in a counterclaim without being pleaded in a reply. Dixon v. Kaufman, 79 N.D. 633, 58 N.W.2d 797, 1953 N.D. LEXIS 69 (N.D. 1953).

Improvements.

Where an occupant of real property has made improvements in the honest but mistaken belief that he was the owner, and where as a result of a judgment in an action to quiet title such occupant will be deprived of all interest in and to the property upon which such improvements are made, the judgment may properly provide against unjust enrichment of the owner to the extent of the improvements. Benson v. Taralseth, 382 N.W.2d 649, 1986 N.D. LEXIS 265 (N.D. 1986).

A person who has failed to establish title to another’s property by adverse possession may gain a lien upon the other’s property for the improvements made on the property. In other words, an owner may be forced to pay for improvements made on his property by a third party even when the improvements were made without his knowledge or consent. Benson v. Taralseth, 382 N.W.2d 649, 1986 N.D. LEXIS 265 (N.D. 1986).

Pleading.

In action for quiet title, where waiver was not specifically pled, case would be remanded to the trial court for it to determine if the evidence it relied upon for its finding of waiver was introduced to support an issue specifically pled. Tormaschy v. Tormaschy, 1997 ND 2, 559 N.W.2d 813, 1997 N.D. LEXIS 3 (N.D. 1997).

Reformation of Instrument.

Reformation of an instrument may not be granted in an action to determine adverse claims unless the party seeking reformation has set forth the facts which would entitle him to reformation and has prayed for such relief in his pleadings. MacMaster v. Onstad, 86 N.W.2d 36, 1957 N.D. LEXIS 164, 1957 N.D. LEXIS 165 (N.D. 1957).

Waiver.

Rule 81, N.D.R.Civ.P. is not a complete exception to the application of the rules of pleading as they apply to quiet-title actions, and if waiver is to be used as a claim or defense in a quiet-title action, it should be specially pled. Tormaschy v. Tormaschy, 1997 ND 2, 559 N.W.2d 813, 1997 N.D. LEXIS 3 (N.D. 1997).

Collateral References.

Quieting Title 40.

65 Am. Jur. 2d, Quieting Title and Determination of Adverse Claims, §§ 71, 72.

74 C.J.S. Quieting Title, § 69.

32-17-10. Trial — Findings — Possession — Costs.

The plaintiff or any defendant who has answered may bring the case on for trial as other civil actions are brought on for trial. A defendant interposing a counterclaim for purposes of trial shall be deemed plaintiff, and the plaintiff and codefendants against whom relief is sought shall be deemed defendants as to the counterclaiming defendant. The court in its decision shall find the nature and extent of the claim asserted by the various parties, and shall determine the validity, superiority, and priority of the same. Any defendant in default for want of an answer, or not appearing at the trial, or a plaintiff not appearing at the trial, shall be adjudged to have no estate or interest in, or lien or encumbrance upon, the property, and such defendant also shall be adjudged to pay the amount demanded against such defendant in any counterclaim or reply for the use and occupation of the premises, property removed therefrom, and waste committed, except in the case of a defendant served by publication and not appearing. If any counterclaim for improvements has been urged against one recovering property, the value of such improvements thereof and the value of the land aside from the improvements shall be specifically found. There likewise shall be findings on all other counterclaims urged at the trial. If possession of the premises is demanded by the plaintiff or by any defendant asking for affirmative relief, such possession shall be awarded to the party asking for possession who has the paramount claim to the property, and such defendant thereupon may have a writ for possession as against all other parties to the action. Costs shall be awarded to the prevailing parties against each adversary in the action by the court, except that no costs shall be allowed against a defendant not appearing.

Source:

C. Civ. P. 1877, §§ 636, 643; R.C. 1895, §§ 5905, 5912; R.C. 1899, §§ 5905, 5912; S.L. 1901, ch. 5, § 1; R.C. 1905, § 7528; C.L. 1913, § 8153; R.C. 1943, § 32-1710.

Derivation:

Harston’s (Cal.) Practice, 739.

Note.

Section 32-17-10 is set out above to reflect a correction to the section made since the publication of the 2010 replacement volume.

Notes to Decisions

Costs.

Costs cannot be taxed against a judgment creditor who is made a defendant in an action to determine adverse claims to homestead property. Klemmens v. First Nat'l Bank, 22 N.D. 304, 133 N.W. 1044, 1911 N.D. LEXIS 63 (N.D. 1911).

Where each of the contending parties in an adverse claims action is partly successful, neither being the “prevailing party”, no costs should be awarded to either. Hart v. Casterton, 58 N.D. 657, 227 N.W. 183, 1929 N.D. LEXIS 262 (N.D. 1929).

Counterclaim Plaintiff.

In an action to determine adverse claims, where the defendant interposes a counterclaim asserting title in himself adverse and superior to that of the plaintiff, such defendant becomes as to his claim of title, in effect, a plaintiff, and the court must determine and adjudicate the claims set forth in the counterclaim even though plaintiff’s cause of action may fail. Jester v. Jester, 76 N.D. 517, 37 N.W.2d 879, 1949 N.D. LEXIS 74 (N.D. 1949).

Dismissal as to Plaintiff.

The jurisdiction of an action to determine adverse claims, dismissed, as to plaintiff without interest, will be retained for the purpose of adjudicating the interests of the parties joined as codefendants. Company A, First Regiment N. G. T. S. v. State, 58 N.D. 66, 224 N.W. 661, 1929 N.D. LEXIS 183 (N.D. 1929).

Failure to Answer.

In an action to determine adverse claims, individual defendants had the right to appear by attorney, even though in default of an answer, and challenge sufficiency of plaintiff’s proof offered and move for dismissal of plaintiff’s cause of action for failure of proof. Murphy v. Missouri & K. Land & Loan Co., 28 N.D. 519, 149 N.W. 957, 1914 N.D. LEXIS 140 (N.D. 1914).

Money Judgment.

A money judgment may be entered in favor of a defendant interposing a counterclaim. Farmers State Bank v. Anton, 51 N.D. 202, 199 N.W. 582, 1924 N.D. LEXIS 161 (N.D. 1924).

Payment of Taxes.

In an action to determine adverse claims, the plaintiff will not be relieved from an alleged invalid tax unless he pays the face amount of all just taxes with interest from the day of sale. State Fin. Co. v. Beck, 15 N.D. 374, 109 N.W. 357, 1906 N.D. LEXIS 90 (N.D. 1906); Power v. Larabee, 2 N.D. 141, 49 N.W. 724, 1891 N.D. LEXIS 36 (N.D. 1891), limited, Beggs v. Paine, 15 N.D. 436, 109 N.W. 322, 1906 N.D. LEXIS 87 (N.D. 1906); O'Neil v. Tyler, 3 N.D. 47, 53 N.W. 434, 1892 N.D. LEXIS 9 (N.D. 1892); Northern Pac. Ry. v. McGinnis, 4 N.D. 494, 61 N.W. 1032, 1894 N.D. LEXIS 54 (N.D. 1894), disapproved, McHenry v. Alford, 168 U.S. 651, 18 S. Ct. 242, 42 L. Ed. 614, 1898 U.S. LEXIS 1356 (U.S. 1898); Eaton v. Bennett, 10 N.D. 346, 87 N.W. 188, 1901 N.D. LEXIS 41 (N.D. 1901).

Where there is an utter absence of those things which are inherently essential to a valid tax, equity cannot require payment as a condition precedent to relief from the proceedings. State Fin. Co. v. Beck, 15 N.D. 374, 109 N.W. 357, 1906 N.D. LEXIS 90 (N.D. 1906).

Proof of Claim.

Where plaintiff and defendants all claimed an interest in land derived from a common source and the only issue on the trial was the validity and superiority of their claims, it was unnecessary to trace the title beyond the common source. Shuck v. Shuck, 77 N.D. 628, 44 N.W.2d 767, 1950 N.D. LEXIS 158 (N.D. 1950).

It is the duty of attorneys for the parties to a statutory action to determine adverse claims to provide sufficient evidence to enable the court to decide the issues they want decided and the decision of the court will go no further than the evidence warrants. MacMaster v. Onstad, 86 N.W.2d 36, 1957 N.D. LEXIS 164, 1957 N.D. LEXIS 165 (N.D. 1957).

Relief Granted.

When the contesting parties in an action to quiet title have asked for complete, equitable relief and a determination of the priorities of their respective claims on the tract of land in controversy, a court of equity has authority to grant the full relief asked by the pleadings and within the scope of the proof. Wilson v. Polsfut, 78 N.D. 204, 49 N.W.2d 102, 1951 N.D. LEXIS 84 (N.D. 1951).

Value of Use of Property.

Defendants who prevail as to title and right to possession of the premises are entitled to recover, under their counterclaim, the value of the use of the property from the time that it was first occupied by plaintiff up to the date of the judgment. Belakjon v. Hilstad, 76 N.D. 298, 35 N.W.2d 637, 1949 N.D. LEXIS 57 (N.D. 1949).

Verdict.

A verdict was defective where it did not find for the plaintiff upon all of the issues of fact, but found for him “the legal title” and was absolutely silent as to the issues set up by the defendant in his counterclaim. Uhlig v. Garrison, 2 N.W. 258, 2 Dakota 99, 1878 Dakota LEXIS 3 (Dakota 1878).

Collateral References.

Quieting Title 47, 54.

65 Am. Jur. 2d, Quieting Title and Determination of Adverse Claims, §§ 77-81, 86.

74 C.J.S. Quieting Title, §§ 79, 82-85, 94.

32-17-11. Judgment — When right fails after action brought.

In an action for the recovery of real property, when a party shows a right to recover at the time when the action was commenced, but it appears that the party’s right has terminated during the pendency of the action, the findings and judgment must be according to the facts, and the party may recover whatever such party may show such party is entitled to up to the time that the party’s right terminated.

Source:

C. Civ. P. 1877, § 640; R.C. 1895, § 5909; R.C. 1899, § 5909; S.L. 1901, ch. 5, § 1; R.C. 1905, § 7529; C.L. 1913, § 8154; R.C. 1943, § 32-1711.

Derivation:

Harston’s (Cal.) Practice, 740.

Notes to Decisions

Damages.

In an action of ejectment, and to recover damages for withdrawing property, if it appears that plaintiff has conveyed the land pending the litigation, he still is entitled to judgment for whatever damages the evidence may establish. Dunstan v. Northern Pac. Ry., 2 N.D. 46, 49 N.W. 426, 1891 N.D. LEXIS 32 (N.D. 1891).

Rent for Use and Occupation.

The amount of recovery for the use of the property during its occupation by one who has claimed title and right to possession thereto under color of title and without right is the fair rental value of the property during the period of occupation. Belakjon v. Hilstad, 76 N.D. 298, 35 N.W.2d 637, 1949 N.D. LEXIS 57 (N.D. 1949).

Collateral References.

Quieting Title 52.

65 Am. Jur. 2d, Quieting Title and Determination of Adverse Claims, §§ 82-84.

74 C.J.S. Quieting Title, §§ 90-93.

32-17-12. Adjustment of cross judgments.

If the decision of the court is in favor of one party for the recovery of the real property and in favor of another for improvements, the former shall have the option for sixty days after receiving notice that the findings are filed to pay the value of such improvements less such sums as may be found due for use and occupation and waste, or to take judgment against the other party for the value of the land aside from the improvements, as determined by the findings, and such sums as may be found due for use and occupation and waste. If such option is not exercised in writing by such party or such party’s attorney, and filed with the clerk within sixty days, the other party thereupon may exercise the option for such party in like manner. If the party entitled to the possession of the property received in lieu thereof a money judgment, the other party may be subrogated to all the former’s rights therein, including all the relief that party otherwise would be entitled to under the findings, and judgment thereupon shall be entered accordingly. Until payment is made by the party recovering the land, or until tender and deposit in the office of the clerk of the court in which the action is pending, no writ for the possession of the property shall be issued.

Source:

C. Civ. P. 1877, § 644; R.C. 1895, § 5913; R.C. 1899, § 5913; S.L. 1901, ch. 5, § 1; R.C. 1905, § 7530; S.L. 1911, ch. 305, § 1; C.L. 1913, § 8155; R.C. 1943, § 32-1712.

32-17-13. When defendant permitted to defend.

A defendant in an action to determine adverse claims, proceeded against by name or as an unknown party, or the defendant’s representative, on application and sufficient cause shown at any time before trial, must be allowed to defend on such terms as may be just, and any such defendant or defendant’s representatives upon good cause shown, and on such terms as may be just, may be allowed to defend after trial and within one year after the rendition of judgment therein, but not otherwise.

Source:

S.L. 1901, ch. 5, § 1; R.C. 1905, § 7531; C.L. 1913, § 8156; R.C. 1943, § 32-1713.

Notes to Decisions

Affidavit.

An affidavit of merits, showing reasonable diligence in presenting the application to vacate after knowledge of the judgment and a meritorious defense, must be made by the applicant himself or someone having personal knowledge of the facts in the case. If not made by the applicant, a good and sufficient reason therefor must be set forth. Huwe v. Singer, 63 N.W.2d 399, 1954 N.D. LEXIS 71 (N.D. 1954).

Where in an action to quiet title a judgment has been rendered on default upon constructive service and an unknown defendant makes application that the judgment be vacated and he be allowed to answer, he must present to the court a positive affidavit of merits showing reasonable diligence in presenting the application to vacate after knowledge of the judgment and a meritorious defense, together with a proposed, verified answer. Huwe v. Singer, 63 N.W.2d 399, 1954 N.D. LEXIS 71 (N.D. 1954).

Denial of Application.

The denial of application to vacate a default judgment is not error if the verified answer fails to show the defense on the merits. Hart v. Hone, 57 N.D. 590, 223 N.W. 346, 1928 N.D. LEXIS 81 (N.D. 1928).

In an action to determine adverse claims where the proceedings complied with statutory requirements and the court had jurisdiction, an application to reopen and vacate a default judgment entered in such action is barred unless such application is made within one year after the rendition of such default judgment. Stewart v. Berg, 65 N.W.2d 621, 1954 N.D. LEXIS 96 (N.D. 1954); Burtman v. Skeie, 70 N.W.2d 401, 1955 N.D. LEXIS 108 (N.D. 1955); Turnquist v. Kjelbak, 77 N.W.2d 854, 1956 N.D. LEXIS 133 (N.D. 1956).

Liberal Construction.

The provisions of this section are remedial in nature and are entitled to a liberal construction and application. Azar v. Olson, 61 N.W.2d 188, 1953 N.D. LEXIS 99 (N.D. 1953); Hagen v. Altman, 79 N.W.2d 53, 1956 N.D. LEXIS 151 (N.D. 1956).

Moving Papers.

It is incumbent upon a defendant, who seeks to have a default judgment vacated and to be permitted to defend, to show prima facie, by his moving papers, that he has a good and meritorious defense. Smith v. Cook, 73 N.W.2d 151, 1955 N.D. LEXIS 151 (N.D. 1955).

Statute of Limitations.

Claim asserting property was partnership property which was filed over four years after entry of judgment quieting title to the property, was time-barred. Murphy v. Murphy, 1999 ND 118, 595 N.W.2d 571, 1999 N.D. LEXIS 110 (N.D. 1999).

Sufficiency of Application.

In an action to quiet title where relief is sought within a year after the rendition of a default judgment obtained on constructive service concerning which the defendant had no knowledge and it appears that the defendant has a defense on the merits and has shown reasonable diligence in seeking relief, the judgment should be vacated and the defendant permitted to answer. Azar v. Olson, 61 N.W.2d 188, 1953 N.D. LEXIS 99 (N.D. 1953); Smith v. Cook, 73 N.W.2d 151, 1955 N.D. LEXIS 151 (N.D. 1955); Hagen v. Altman, 79 N.W.2d 53, 1956 N.D. LEXIS 151 (N.D. 1956).

Collateral References.

Quieting Title 52.

74 C.J.S. Quieting Title, §§ 91, 92.

32-17-14. Both parties have right of entry.

The court in which an action is pending for the recovery of real property or for damages for an injury thereto, or a judge thereof, on motion, upon notice by either party, for good cause shown, may grant an order allowing to such party the right to enter upon the property and make survey and measurement thereof and of any tunnels, shafts, or drifts thereon for the purpose of the action, even though entry for such purpose has to be made through other lands belonging to parties to the action.

Source:

C. Civ. P. 1877, § 645; R.C. 1895, § 5914; R.C. 1899, § 5914; R.C. 1905, § 7532; C.L. 1913, § 8159; R.C. 1943, § 32-1714.

Derivation:

Harston’s (Cal.) Practice, 742.

32-17-15. Order for entry — Service.

The order for entry must describe the property and a copy thereof must be served on the owner or occupant, and thereupon such party may enter upon the property with necessary surveyors and assistants and make such survey and measurement, but if any unnecessary injury is done to the property such party is liable therefor.

Source:

C. Civ. P. 1877, § 646; R.C. 1895, § 5915; R.C. 1899, § 5915; R.C. 1905, § 7533; C.L. 1913, § 8160; R.C. 1943, § 32-1715.

Derivation:

Harston’s (Cal.) Practice, 743.

32-17-16. Purchaser may recover for waste.

When real property has been sold on execution, the purchaser thereof, or any person who may have succeeded to the purchaser’s interest, after the purchaser’s estate becomes absolute, may recover damages for injury to the property by the tenant in possession after sale and before possession is delivered under the conveyances.

Source:

C. Civ. P. 1877, § 647; R.C. 1895, § 5916; R.C. 1899, § 5916; R.C. 1905, § 7534; C.L. 1913, § 8161; R.C. 1943, § 32-1716.

Derivation:

Harston’s (Cal.) Practice, 746.

32-17-17. Alienation not to affect action.

An action for the recovery of real property against a person in possession cannot be prejudiced by any alienation made by such person either before or after the commencement of the action.

Source:

C. Civ. P. 1877, § 648; R.C. 1895, § 5917; R.C. 1899, § 5917; R.C. 1905, § 7535; C.L. 1913, § 8162; R.C. 1943, § 32-1717.

Derivation:

Harston’s (Cal.) Practice, 747.

32-17-18. Mining customs govern mining claims.

In an action respecting a mining claim, proof of the customs, usages, or regulations established and in force at the bar or diggings embracing such claim must be admitted, and such customs, usages, or regulations, when not in conflict with the laws of this state and the United States, must govern the decision of the action.

Source:

C. Civ. P. 1877, § 649; R.C. 1895, § 5918; R.C. 1899, § 5918; R.C. 1905, § 7536; C.L. 1913, § 8163; R.C. 1943, § 32-1718.

Derivation:

Harston’s (Cal.) Practice, 748.

32-17-19. Court may determine heirs or devisees of deceased entrymen.

When any person holding a homestead or tree claim under the laws of the United States shall have died before patent therefor has been issued, and, by reason of such death, a patent or final certificate afterward shall be granted to “the heirs” or to “the devisees” of such person, the district court of the county in which the lands are situated, in a civil action brought for that purpose, may determine who are such heirs or devisees and what are their respective shares in said homestead or tree claim. Such action shall be governed by the provisions of this chapter insofar as the same may be applicable.

Source:

S.L. 1911, ch. 121, §§ 1, 2; 1913, ch. 128, §§ 1, 2; C.L. 1913, §§ 8157, 8158; R.C. 1943, § 32-1719.

32-17-20. Claimants on public land.

Any person settled upon the public lands belonging to the United States on which settlement is not prohibited expressly by Congress, or some department of the general government, may maintain an action for any injuries done to the same, or an action to recover the possession thereof, in the same manner as if the person possessed a fee simple title to such lands.

Source:

C. Civ. P. 1877, § 650; R.C. 1895, § 5919; R.C. 1899, § 5919; R.C. 1905, § 7537; C.L. 1913, § 8164; R.C. 1943, § 32-1720.

Notes to Decisions

Right to Possession.

A court of law, while a contest is pending, or prior to any decision of the land department, cannot hear and determine a contestant’s right of preemption in determining his right to possession of public lands. Forbes v. Driscoll, 31 N.W. 633, 4 Dakota 336, 1887 Dakota LEXIS 3 (Dakota 1887).

The rightful claimant’s possession or right to possession will always be protected or enforced against a trespasser by the appropriate action in court when that can be done without deciding a controversy of which the land department has exclusive jurisdiction. Zimmerman v. McCurdy, 15 N.D. 79, 106 N.W. 125, 1906 N.D. LEXIS 7 (N.D. 1906).

Water Rights.

The right of a homestead settlor to use water which he has appropriated after making entry is superior to that of one entering upon adjoining land under the United States statutes and locating a water right subsequent to the settlor’s occupancy, but prior to his final proof. Sturr v. Beck, 50 N.W. 486, 6 Dakota 71, 1888 Dakota LEXIS 63 (Dakota 1888).

32-17-21. Holder of contract for purchase of land from state may sue.

Any person who shall hold any contract from the state through the board of university and school lands, or otherwise, for the purchase of any real property within the state, may maintain any action for injuries done to the same, or an action to recover possession thereof, in the same manner as though the person possessed the fee simple title to such lands. However, in any action or proceeding by or against a railway company with reference to right of way or otherwise, the court, in any judgment which it may enter, shall protect the interest of the state in and to such real property to the extent that the value of such lands taken, at the price agreed to be paid per acre to the state therefor, shall be directed to be paid to the proper officials of the state, and, upon such payment, any claim of the state or any of its boards to such part of said property as shall be taken by the railway company shall be at an end.

Source:

S.L. 1909, ch. 208, § 1; C.L. 1913, § 8165; R.C. 1943, § 32-1721.

32-17-22. Waste — When actionable.

If a guardian, tenant for life or years, joint tenant, or tenant in common, of real property, commits waste thereon, any person aggrieved by the waste may bring an action against the one committing waste therefor, and in such action there may be judgment for treble damages, forfeiture of the estate of the party offending, and eviction from the premises.

Source:

C. Civ. P. 1877, § 652; R.C. 1895, § 5921; R.C. 1899, § 5921; R.C. 1905, § 7539; C.L. 1913, § 8167; R.C. 1943, § 39-1722.

Derivation:

Wait’s (N.Y.) Code, 450; Harston’s (Cal.) Practice, 732.

Notes to Decisions

Lien Imposed by Judgment.

In its judgment rendered against tenant for waste, trial court had no statutory authority to impose a lien on tenant’s personal property left on the land after forfeiture of the leasehold estate, with such lien to terminate upon tenant’s payment of the judgment within a certain time; under N.D.C.C. §§ 28-21-12 and 28-21-13, the judgment could not impose a lien against the personal property before the property had been levied upon. Towne v. Sautter, 326 N.W.2d 694, 1982 N.D. LEXIS 398 (N.D. 1982).

Mineral Lease.

This section is not applicable to damages caused to surface estate by a lessee under a mineral lease because mineral lessee only acquires an easement in surface estate for purpose of developing its mineral interest. Slaaten v. Cliff's Drilling Co., 748 F.2d 1275, 1984 U.S. App. LEXIS 16355 (8th Cir. N.D. 1984).

Removal of Improvements or Personalty After Forfeiture.

Tenant does not lose his right to remove improvements or personalty from the premises merely because he has forfeited his leasehold estate pursuant to this section; and, tenant does not lose title to his personal property by neglecting to remove it after forfeiture; however, title to the personal property may vest in the landlord if the tenant abandons the property and the landlord takes possession. Towne v. Sautter, 326 N.W.2d 694, 1982 N.D. LEXIS 398 (N.D. 1982).

Where tenant refuses to remove his personal property after a forfeiture of his leasehold estate, the landlord may remove the property in any reasonable manner and may recover his expenses from the tenant. Towne v. Sautter, 326 N.W.2d 694, 1982 N.D. LEXIS 398 (N.D. 1982).

Collateral References.

Waste 1-22.

78 Am. Jur. 2d, Waste, §§ 1 et seq.

93 C.J.S. Waste, §§ 1-19.

Oil and gas: rights and remedies of owner or lessee of oil or gas land or mineral or royalty interest therein, in respect of waste of oil or gas through operations on other lands, 4 A.L.R.2d 198.

Measure of damages in landlord’s action for waste against tenant, 82 A.L.R.2d 1106.

Right of contingent remainderman to maintain action for damages for waste, 56 A.L.R.3d 677.

32-17-23. When judgment of forfeiture for waste given to holder of reversion.

Judgment of forfeiture and eviction shall not be given in favor of the person entitled to the reversion against the tenant in possession unless the injury to the estate in reversion shall be adjudged in the action to be equal to the value of the tenant’s estate or unexpired term, or to have been done in malice.

Source:

C. Civ. P. 1877, § 653; R.C. 1895, § 5922; R.C. 1899, § 5922; R.C. 1905, § 7540; C.L. 1913, § 8168; R.C. 1943, § 32-1723.

Derivation:

Wait’s (N.Y.) Code, 452.

Collateral References.

Forfeiture of life estate for waste, 16 A.L.R.3d 1344.

CHAPTER 32-18 Cancellation of Land Contracts

32-18-01. Instruments for future conveyance — Cancellation — Owner must give written notice to vendee or purchaser.

No owner of real estate, or owner of any equity therein, who shall make or execute a contract for deed, bond for deed, or other instrument for the future conveyance of any such real estate or equity therein, shall have the right to declare a cancellation, termination, or forfeiture thereof or thereunder, except upon written notice to the vendee or purchaser, or the vendee’s or purchaser’s assigns, as provided in this chapter, and such notice shall be given to such vendee or purchaser or such vendee’s or purchaser’s assigns, notwithstanding any provision or condition in any such instrument to the contrary.

Source:

S.L. 1903, ch. 204, § 1; R.C. 1905, § 7494; C.L. 1913, § 8119; R.C. 1943, § 32-1801.

Notes to Decisions

Accelerated Payments upon Default.

Seller cannot accelerate payments under terms of a contract for deed upon buyer’s default and then cause a forfeiture of the contract under this chapter upon buyer’s failure to pay the accelerated amount. Johnson v. Gray, 265 N.W.2d 861, 1978 N.D. LEXIS 236 (N.D. 1978).

Applicability.

This section is applicable only where there is an operative and binding contract for deed; where purchaser was required to make a down payment to put the contract into effect and was unable to do so, the contract was never operative, and seller was free to sell the property to another without proceeding under this section. Gerhardt v. Fleck, 256 N.W.2d 547, 1977 N.D. LEXIS 156 (N.D. 1977).

Cancellation by Action.

Cancellation of a contract for deed by notice pursuant to this chapter is not an exclusive remedy, and the seller may elect to cancel the contract by action whereby written notice of intent to cancel the contract is not required; when a seller chooses to cancel by action, there is not a statutorily prescribed period for redemption and that matter is left within the sound discretion of the district court. Straub v. Lessman, 403 N.W.2d 5, 1987 N.D. LEXIS 281 (N.D. 1987).

Election of Remedies.

A vendor, under an executory contract of sale, upon vendee’s default, may foreclose the contract, obtain judgment for the purchase price, and have the property sold to satisfy the judgment, or he may cancel the contract. Vail v. Evesmith, 62 N.D. 99, 241 N.W. 719, 1932 N.D. LEXIS 155 (N.D. 1932).

A contract for the sale of real estate which contains a provision that in case of default by the purchaser he agrees upon demand by the vendor to surrender possession does not afford an exclusive remedy. The vendor may waive the provisions of the contract in this respect and pursue the remedy of foreclosure by action. Schaff v. Kennelly, 61 N.W.2d 538, 1953 N.D. LEXIS 86 (N.D. 1953).

Exclusivity of Remedy.

The provisions for cancellation of land contracts contained in this chapter are not exclusive. Johnson v. Gray, 251 N.W.2d 923, 1977 N.D. LEXIS 240 (N.D. 1977).

Cancellation of a contract for deed by notice pursuant to this chapter is not an exclusive remedy; courts of equity have the power to cancel land contracts through cancellation by action, in which case no statutory written notice of intention to cancel is required and the period of redemption is left to the discretion of the court. Schumacher Homes v. J & W Enters., 318 N.W.2d 763, 1982 N.D. LEXIS 251 (N.D. 1982).

Cancellation of a contract for deed by notice pursuant to this chapter is not an exclusive remedy. Striegel v. Dakota Hills, 365 N.W.2d 491, 1985 N.D. LEXIS 282 (N.D. 1985).

An option for cancellation in a contract for deed does not make cancellation the vendor’s exclusive remedy. Striegel v. Dakota Hills, 365 N.W.2d 491, 1985 N.D. LEXIS 282 (N.D. 1985).

It is well settled that cancellation of a contract for deed by notice pursuant to this chapter is not an exclusive remedy. Adolph Rub Trust v. Rub, 474 N.W.2d 73, 1991 N.D. LEXIS 155 (N.D. 1991), cert. denied, 503 U.S. 911, 112 S. Ct. 1276, 117 L. Ed. 2d 502, 1992 U.S. LEXIS 1494 (U.S. 1992).

Law Governing.

Whether the cancellation of a land contract is governed by the law of the situs or of the place of making and performance is a question of local common law not reversible on writ of error to a state court. Kryger v. Wilson, 242 U.S. 171, 37 S. Ct. 34, 61 L. Ed. 229, 1916 U.S. LEXIS 1546 (U.S. 1916).

Notice.

The word “assigns” includes the vendee of the purchaser, when known to the vendor, and notice must be served upon such vendee in order to forfeit the contract. Williams v. Corey, 21 N.D. 509, 131 N.W. 457, 1911 N.D. LEXIS 121 (N.D. 1911).

A vendor, upon cancellation of a contract for deed by the service of notice, may maintain an action of forcible detainer against the purchaser upon his refusal to surrender possession. E. J. Lander & Co. v. Deemy, 46 N.D. 273, 176 N.W. 922, 1920 N.D. LEXIS 6 (N.D. 1920).

A vendor in a land contract having notice or knowledge that the vendee has assigned his interest in the contract must serve notice of cancellation on the assignee. Raasch v. Goulet, 52 N.D. 707, 204 N.W. 338, 1925 N.D. LEXIS 131 (N.D. 1925).

Where the decree of a foreclosure was based on a default available to the vendor, and held to be controlling, a nonresident purchaser cannot claim that his rights were foreclosed without due process for lack of actual notice. Kryger v. Wilson, 242 U.S. 171, 37 S. Ct. 34, 61 L. Ed. 229, 1916 U.S. LEXIS 1546 (U.S. 1916).

Where the purchaser under a contract for deed mortgaged his interest, the mortgagee was an equitable assignee of the purchaser’s interest and, in an action to cancel the contract for deed, the seller, who knew of the mortgagee’s interest, should have joined the mortgagee as a party defendant and, because of his failure to do so, the interest of the mortgagee was not terminated; in an action by the seller for the purpose of quieting title as against the interest of the mortgagee, the mortgagee was given reasonable time within which to make good the purchaser’s default. Knauss v. Miles Homes, Inc., 173 N.W.2d 896, 1969 N.D. LEXIS 65 (N.D. 1969).

If a party fails to comply with the terms of a contract without receiving the mutual agreement of all other parties to rescind the contract, a breach of the contract for deed occurs and a breaching party is entitled to receive notice of that breach under this section. In re Flaten, 50 B.R. 186, 1985 Bankr. LEXIS 5960 (Bankr. D.N.D. 1985).

If a seller elects to cancel the contract by action, no statutory written notice of intent to cancel the contract is required. Adolph Rub Trust v. Rub, 474 N.W.2d 73, 1991 N.D. LEXIS 155 (N.D. 1991), cert. denied, 503 U.S. 911, 112 S. Ct. 1276, 117 L. Ed. 2d 502, 1992 U.S. LEXIS 1494 (U.S. 1992).

Redemption Period.

Where the vendor cancelled the deed by action and demonstrated that the repeated failure of the purchasers to make timely payments had caused her severe economic hardship, the trial court did not abuse its discretion in providing a two-month redemption period. Straub v. Lessman, 403 N.W.2d 5, 1987 N.D. LEXIS 281 (N.D. 1987).

When a seller cancels by action there is no statutory redemption period; rather, the matter is left to the sound discretion of the trial court. Adolph Rub Trust v. Rub, 474 N.W.2d 73, 1991 N.D. LEXIS 155 (N.D. 1991), cert. denied, 503 U.S. 911, 112 S. Ct. 1276, 117 L. Ed. 2d 502, 1992 U.S. LEXIS 1494 (U.S. 1992).

Remedies.

Trial court erred in awarding vendors a money judgment in their action upon default of a contract for deed where the judgment also provided that if the money judgment was not satisfied before a certain date, then the contract for deed was, without more, cancelled or the vendors could proceed to foreclose the contract for deed pursuant to N.D.C.C. § 32-19-06; the award of the money judgment in addition to the other remedies provided by the judgment would permit the vendors to accomplish indirectly what they could not accomplish directly through an action pursuant to the cancellation statutes, N.D.C.C. ch. 32-18, or foreclosure statutes, chapter 32-19. Langenes v. Bullinger, 328 N.W.2d 241, 1982 N.D. LEXIS 372 (N.D. 1982).

In North Dakota, a vendor, upon default under a contract for deed, may cancel the contract by statutory proceeding or proceed by action. In re Schmidt, 71 B.R. 618, 1987 Bankr. LEXIS 422 (Bankr. D.N.D. 1987).

Security for Debt.

If it is admitted or shown by separate written instrument that the transaction is not an unconditional sale, but a mortgage or a sale with the right to repurchase, the court is inclined to construe the transaction as a mortgage, and on any question whether the mortgage or conditional sale was intended, any substantial doubt as to the intention will be resolved in favor of the construction that the conveyance is a security for a debt. Smith v. Hoff, 23 N.D. 37, 135 N.W. 772, 1912 N.D. LEXIS 73 (N.D. 1912).

Waiver of Right to Cancel.

Seller waived his right to cancel a contract for deed upon buyer’s default where the seller had full knowledge of the facts and acted in a manner inconsistent with his right to cancel or forfeit the contract. Sadler v. Ballantyne, 268 N.W.2d 119, 1978 N.D. LEXIS 131 (N.D. 1978).

A vendor’s conduct which is inconsistent with his intention to cancel constitutes a waiver of his right to cancel a contract for deed. Pyle v. Egeberg, 356 N.W.2d 94, 1984 N.D. LEXIS 382 (N.D. 1984).

Collateral References.

Vendor and Purchaser 82-127.

91 C.J.S. Vendor and Purchaser, §§ 155-257, 259-311.

Measure and items of recovery for improvements, 24 A.L.R.2d 11.

False representations as to income, profits, or productivity of property as fraud, 27 A.L.R.2d 14.

Vendee’s liability for use and occupancy of premises, where vendor disaffirms unenforceable land contract, 49 A.L.R.2d 1169.

Venue of action for rescission or cancellation of contract relating to interests in land, 77 A.L.R.2d 1014.

Circumstances justifying delay in rescinding land contract after learning of ground of rescission, 1 A.L.R.3d 542.

Applicability of statute of frauds to agreement to rescind contract for sale of land, 42 A.L.R.3d 242.

Mutual mistake as to physical condition of realty as ground for rescission, 50 A.L.R.3d 1188.

Modern view as to right of real estate broker to recover commission from seller-principal where buyer defaults under valid contract of sale, 12 A.L.R.4th 1083.

Law Reviews.

Cancellation of Land Contracts, 32 N.D. L. Rev. 5 (1956).

32-18-02. Default — Contents of notice.

Whenever any default shall have been made in the terms or conditions of any such instrument for future conveyance of real estate or equity therein, and the owner or vendor shall desire to cancel or terminate the same, the owner or vendor, within a reasonable time after such default, shall cause a written notice to be served upon the vendee or purchaser, or the vendee’s or purchaser’s assigns, stating that such default occurred and that said contract will be canceled or terminated, and the time when said cancellation or termination shall take effect, which shall be as provided in section 32-18-04.

Source:

S.L. 1903, ch. 204, § 2; R.C. 1905, § 7495; C.L. 1913, § 8120; R.C. 1943, § 32-1802; S.L. 1971, ch. 327, § 1.

Notes to Decisions

Contents of Notice.

Notice of cancellation that specified defaults which actually occurred was not made ineffective where it also specified acts of default which had not occurred and requested payment for amounts that were not due. Johnson v. Gray, 265 N.W.2d 861, 1978 N.D. LEXIS 236 (N.D. 1978).

Notice of default was clear, explicit, and in compliance with requirements of this section where it referred to a specific installment payment on a contract for deed which was missed and stated that contract for deed would be canceled if payment was not tendered within one-year period provided for under N.D.C.C. § 32-18-04. Pyle v. Egeberg, 356 N.W.2d 94, 1984 N.D. LEXIS 382 (N.D. 1984).

Forcible Detainer.

A vendor, upon cancellation of a contract for deed by the service of notice, may maintain an action of forcible detainer against the purchaser upon his refusal to surrender possession. E. J. Lander & Co. v. Deemy, 46 N.D. 273, 176 N.W. 922, 1920 N.D. LEXIS 6 (N.D. 1920).

Sufficiency of Notice.

Letters giving notice of intent to cancel contract for deed which were prepared by vendors’ attorney on his own and without authorization of vendors and which did not state the time the cancellation was to take effect were insufficient to begin a cancellation action by the vendors. Williamson v. Magnusson, 336 N.W.2d 353, 1983 N.D. LEXIS 385 (N.D. 1983).

Time Cancellation to Take Effect.

This section requires a notice of cancellation to state the time the cancellation shall take effect, as provided in N.D.C.C. § 32-18-04. Williamson v. Magnusson, 336 N.W.2d 353, 1983 N.D. LEXIS 385 (N.D. 1983).

32-18-03. Notice of default — How served.

Notice of cancellation shall be served upon the vendee or purchaser, or the vendee’s or purchaser’s assigns, in the manner provided for the service of a summons in the district court of this state, if the person to be served resides within the state. If such vendee or purchaser, or such vendee’s or purchaser’s assigns, as the case may be, resides without the state or cannot be found therein, of which fact the return of the sheriff of the county in which said real estate is situated that such person cannot be found in the sheriff’s county shall be prima facie evidence, then such notice shall be served by the publication thereof in a legal newspaper within said county, or, if there is no legal newspaper within said county, then in a newspaper published in an adjoining county and having a general circulation in the county, once each week for three successive weeks.

Source:

S.L. 1903, ch. 204, § 3; R.C. 1905, § 7496; C.L. 1913, § 8121; R.C. 1943, § 32-1803.

Notes to Decisions

Assignment of Interest.

A vendor in a land contract having notice or knowledge that the vendee has assigned his interest in the contract must serve notice of cancellation on the assignee. Williams v. Corey, 21 N.D. 509, 131 N.W. 457, 1911 N.D. LEXIS 121 (N.D. 1911); Buller v. Falk, 41 N.D. 624, 171 N.W. 823, 1919 N.D. LEXIS 97 (N.D. 1919); Raasch v. Goulet, 52 N.D. 707, 204 N.W. 338, 1925 N.D. LEXIS 131 (N.D. 1925).

Time for Cancellation.

The time specified in a notice for the cancellation of a land contract fixes the time for its cancellation, subject to the statutory requirements. Rourke v. Hoover Grain Co., 48 N.D. 247, 183 N.W. 1005, 1921 N.D. LEXIS 31 (N.D. 1921).

Law Reviews.

Cancellation of Land Contracts, 32 N.D. L. Rev. 5 (1956).

32-18-04. Time allowed to correct default.

The vendee or purchaser, or the vendee’s or purchaser’s assigns, shall have the following periods of time after the service of notice of cancellation upon such party in which to perform the conditions or comply with the provisions upon which the default shall have occurred:

  1. If the amount claimed due under such instrument at the date of notice is more than sixty-six and two-thirds percent of the original indebtedness, the time allowed to correct the default shall be six months.
  2. In any other case, the time for correction shall be one year.

Upon such performance and upon making such payments, together with the cost of service of such notice, such contract or other instrument shall be reinstated and shall remain in full force and effect as if no default had occurred therein. If, however, such vendee or purchaser, or such vendee’s or purchaser’s assigns, shall not complete such performance or make such payment within the time periods provided by this section, the contract shall be terminated and shall not be reinstated by any subsequent offer of performance, or tender of payment. No provisions in any contract for the purchase of land or an interest in land shall be construed to obviate the necessity of giving the aforesaid notice and no contract shall terminate unless such notice is given, any provision in such contract to the contrary notwithstanding, but the notice herein required shall not be deemed necessary if the contract in question is sought to be terminated by an action at law or in equity brought for that purpose upon failure to perform. This section shall apply to all instruments for a future conveyance of real estate or an equity therein which are executed on or after July 1, 1971. The time allowed to correct the default shall not be less than one year except in contracts involving an area not to exceed three acres.

Source:

S.L. 1903, ch. 204, § 4; R.C. 1905, § 7497; C.L. 1913, § 8122; S.L. 1915, ch. 180, § 1; 1917, ch. 151, § 1; 1921, ch. 65, § 1; 1925 Supp., § 8122; R.C. 1943, § 32-1804; S.L. 1971, ch. 327, § 2.

Cross-References.

Contents of judgment, in action for foreclosure of a real estate mortgage, see N.D.C.C. § 32-19-06.

Notes to Decisions

Accelerated Payments upon Default.

Seller cannot accelerate payments under terms of a contract for deed upon buyer’s default and then require buyer to pay the accelerated amount to reinstate the contract. Johnson v. Gray, 265 N.W.2d 861, 1978 N.D. LEXIS 236 (N.D. 1978).

Application of Statute.

This section applies only to a contract which was made after the law took effect, and does not apply to a contract made prior thereto. E.J. Lander & Co. v. Deemy, 46 N.D. 273, 176 N.W. 922 (1920), decided prior to 1971 amendment.

Assignment of Interest.

A vendor in a land contract having notice or knowledge that the vendee has assigned his interest in the contract must serve notice of cancellation on the assignee. Raasch v. Goulet, 52 N.D. 707, 204 N.W. 338, 1925 N.D. LEXIS 131 (N.D. 1925).

Attempt to Recover Purchase Price.

An attempt by a defaulting vendee under a land contract to recover a portion of the purchase price is in derogation of the contract, and is not aided by the fact that the vendor has not canceled the contract under this section. Harrington v. Eggen, 51 N.D. 87, 199 N.W. 447, 1924 N.D. LEXIS 155 (N.D. 1924).

A vendor cannot both cancel the executory contract for the sale of land and recover the purchase price. Vail v. Evesmith, 62 N.D. 99, 241 N.W. 719, 1932 N.D. LEXIS 155 (N.D. 1932).

Bankruptcy.

In North Dakota, a contract for deed is essentially a mortgage and not an executory contract; therefore, debtor could not be compelled to assume or reject purchaser’s interest in contract for deed under United States Bankruptcy Code. In re Faiman, 70 B.R. 74, 1987 Bankr. LEXIS 182 (Bankr. D.N.D. 1987).

Equitable Discretion of Court.

In an action by a vendor to cancel a contract for deed because of late payments by purchasers, trial court acted within scope of its equitable discretion by permitting purchasers to make payments to bring contract for deed current within thirty days from entry of judgment, thus reinstating contract for deed, rather than setting a redemption period during which time entire balance due on contract for deed would have to be paid in order to redeem, where purchasers raised equitable defenses of waiver and estoppel; contract for deed did not contain an acceleration clause; and, although contract for deed contained a “time is of the essence” clause, vendors had accepted numerous late payments in past and had not given purchasers notice that they must comply strictly in future with terms of contract for deed concerning payment dates. Shervold v. Schmidt, 359 N.W.2d 361, 1984 N.D. LEXIS 446 (N.D. 1984).

Foreclosure of Sale Contract.

A grantee under a deed taken by a mortgagee in the name of another on the foreclosure of a sale contract holds the excess in trust for the grantor. Knowles v. Older, 57 N.D. 128, 220 N.W. 625, 1928 N.D. LEXIS 106 (N.D. 1928).

Notice of Intent to Cancel.

Notices of intent to cancel and of cancellation do not cancel a contract under this section. Hammer v. Woodworth Elevator Co., 55 N.D. 449, 214 N.W. 251, 1927 N.D. LEXIS 59 (N.D. 1927).

Receiver.

A receiver should not be appointed on an ex parte presentation in an attempt by a vendor to cancel a contract for deed. Glein v. Miller, 45 N.D. 1, 176 N.W. 113, 1920 N.D. LEXIS 103 (N.D. 1920).

Refusal to Surrender Possession.

A vendor, upon cancellation of a contract for deed by the service of notice, may maintain an action of forcible detainer against the purchaser upon his refusal to surrender possession. E. J. Lander & Co. v. Deemy, 46 N.D. 273, 176 N.W. 922, 1920 N.D. LEXIS 6 (N.D. 1920).

Time for Cancellation.

The time specified in a notice for the cancellation of a land contract fixes the time for its cancellation, subject to the statutory requirements. Rourke v. Hoover Grain Co., 48 N.D. 247, 183 N.W. 1005, 1921 N.D. LEXIS 31 (N.D. 1921).

Law Reviews.

Cancellation of Land Contracts, 32 N.D. L. Rev. 5 (1956).

Enforcement of Vendor’s Lien on Realty — The Personal Liability of Vendee’s Assignee, 3 Dak. L. Rev. 376 (1931).

32-18-05. Notice of cancellation to be recorded.

In all cases of cancellation by notice of any contract for deed which has been recorded in the office of the recorder, the following documents shall also be recorded in that office: a copy of the notice of cancellation served upon the vendee, together with an affidavit of service and an affidavit of the vendor or the vendor’s assigns that the default of the vendee under the terms of the contract was not cured, after the date of service of such notice, within the time periods provided in section 32-18-04.

Source:

S.L. 1903, ch. 204, § 4; R.C. 1905, § 7497; C.L. 1913, § 8122; S.L. 1915, ch. 180, § 1; 1917, ch. 151, § 1; 1921, ch. 65, § 1; 1925 Supp., § 8122; R.C. 1943, § 32-1805; S.L. 1971, ch. 327, § 3; 2001, ch. 120, § 1.

Notes to Decisions

Contract for Deed.

Recording statute does not require a contract for deed be recorded before it can be canceled. Rather, the statute requires that when the contract has been recorded, certain other documents also must be recorded. Deacon's Dev., LLP v. Lamb, 2006 ND 172, 719 N.W.2d 379, 2006 N.D. LEXIS 176 (N.D. 2006).

32-18-06. Counterclaim — Injunction against canceling contract.

When it shall be made to appear by affidavit of the vendee or purchaser, or the vendee’s or purchaser’s assigns, agent, or attorney, to the satisfaction of a judge of the district court of the county where the property is situated, that the vendee or purchaser, or the vendee’s or purchaser’s assigns, has a legal counterclaim or any other valid defense against the collection of the whole or any part of the amount claimed to be due on such contract, such judge, by an order to that effect, may enjoin the vendor or the vendor’s successor in interest from the cancellation of such contract by notice and may direct that all further proceedings for the cancellation be had in the district court properly having jurisdiction of the subject matter, and, for the purpose of carrying out the provisions thereof, service may be made upon the vendor or the vendor’s assigns or upon the vendor’s attorney or agent.

Source:

S.L. 1917, ch. 151, § 2; 1921, ch. 65, § 2; 1925 Supp., § 8122a; R.C. 1943, § 32-1806.

Cross-References.

Enjoining mortgagee from foreclosing mortgage or vendor from taking possession or selling property permissible, see N.D.C.C. § 28-29-08.

Foreclosure of mortgages on real property by advertisement enjoined, procedure, see N.D.C.C. § 35-22-04.

Security upon an injunction, damages, see N.D.C.C. § 32-06-05.

Notes to Decisions

Appeal.

An order which dissolves an order enjoining statutory proceedings to foreclose a land contract is appealable. Rourke v. Hoover Grain Co., 48 N.D. 247, 183 N.W. 1005, 1921 N.D. LEXIS 31 (N.D. 1921).

An order enjoining a contract vendor from canceling by notice and requiring all proceedings for the cancellation of the contract to be held in district court is an appealable order. Board of Univ. & Sch. Lands v. Vance, 122 N.W.2d 200, 1963 N.D. LEXIS 93 (N.D. 1963).

Attorney Fees.

Trial court had not erred when it awarded attorney’s fees to a property owner where the purchasers in the eviction action under a contract for deed sought an injunction; however, the record did not provide the appellate court with sufficient information to ascertain whether, and if so, how much of, the attorney fee award was proper or improper because of the appellate court’s ruling that the district court had erred in granting fees for positions asserted by the purchasers prior to litigation in connection with the cancellation of the contract for deed and their refusal to vacate the property. Deacon's Dev., LLP v. Lamb, 2006 ND 172, 719 N.W.2d 379, 2006 N.D. LEXIS 176 (N.D. 2006).

Law Reviews.

Cancellation of Land Contracts, 32 N.D. L. Rev. 5 (1956).

CHAPTER 32-19 Foreclosure of Real Estate Mortgages by Action

32-19-01. Action to foreclose mortgage on real estate authorized.

The plaintiff shall bring an action in district court for the foreclosure of a mortgage upon real property.

Source:

C. Civ. P. 1877, § 616; R.C. 1895, § 5865; R.C. 1899, § 5865; R.C. 1905, § 7476; C.L. 1913, § 8099; R.C. 1943, § 32-1901; 2005, ch. 302, § 3.

Derivation:

Harston’s (Cal.) Practice, 392.

Cross-References.

Advertisement, foreclosure of mortgage of real property by, see N.D.C.C. ch. 35-22.

Board of university and school lands, foreclosure by, see N.D.C.C. § 15-03-12.

Foreclosure in favor of deceased person or to estate or personal representative legalized, see N.D.C.C. § 1-04-10.

Relief from defaults and hardships, see N.D.R.Civ.P. 60.

Validation of foreclosure sales, see N.D.C.C. ch. 1-05.

Notes to Decisions

Bankruptcy.

In North Dakota, a contract for deed is essentially a mortgage and not an executory contract; therefore, debtor could not be compelled to assume or reject purchaser’s interest in contract for deed under United States Bankruptcy Code. In re Faiman, 70 B.R. 74, 1987 Bankr. LEXIS 182 (Bankr. D.N.D. 1987).

Damages.

A mortgagor cannot claim damages from a mortgagee for a valid foreclosure. Lang v. Bank of N. Dakota, 423 N.W.2d 501, 1988 N.D. LEXIS 101 (N.D. 1988).

Jurisdiction.

State courts are vested with exclusive original jurisdiction of all actions for the foreclosure of real estate mortgages in this state. Industrial Comm'n v. Wolf, 588 N.W.2d 590, 1999 ND App 2, 1999 N.D. App. LEXIS 1 (N.D. Ct. App. 1999).

Service of Process.

Service of process under this chapter is not the exclusive available method in foreclosure actions, and N.D.R.Civ.P. 4 clearly envisions service by publication in foreclosure proceedings. First Bank v. Neset, 1997 ND 4, 559 N.W.2d 211, 1997 N.D. LEXIS 10 (N.D. 1997).

Collateral References.

Mortgages 380-590.

55 Am. Jur. 2d, Mortgages, §§ 512 et seq.

59 C.J.S. Mortgages, §§ 739 et seq.

Bankruptcy Act, provision for stay of mortgage foreclosure proceedings upon filing of petition under § 75, by farmer debtor for composition with creditors, 3 A.L.R.2d 544.

Attachment, garnishment, execution, or similar process in action on note or bond, not resulting in sale of mortgaged property, as precluding foreclosure of real estate mortgage, 37 A.L.R.2d 959.

Collateral security, effect of purchase of property by pledgee on foreclosure of mortgage held as, 37 A.L.R.2d 1381, 1397.

Bankruptcy court’s injunction against mortgage or lien enforcement proceedings commenced, before bankruptcy, in another court, 40 A.L.R.2d 663.

Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended, as affecting foreclosure of mortgages and trust deeds, 40 A.L.R.2d 1262, 1279.

Easements: foreclosure of mortgage or trust deed as affecting easement claimed in, over, or under property, 46 A.L.R.2d 1197.

Dedication of land by mortgagor, effect of foreclosure on, 63 A.L.R.2d 1160, 1164.

Death: real estate mortgage executed by one of joint tenants as enforceable after his death, 67 A.L.R.2d 999.

Contempt of court, mortgagor’s interference with property subject to order of foreclosure and sale as, 54 A.L.R.3d 1242.

Validity of grandparent visitation statutes, 86 A.L.R.6th 1.

Necessity of production of original note involved in mortgage foreclosure — Twenty-first Century cases, 86 A.L.R.6th 411.

Law Reviews.

Real Estate Mortgage Foreclosures in North Dakota, 3 Dak. L. Rev. 25 (1930).

32-19-02. Power of attorney required — Exceptions. [Repealed]

Repealed by S.L. 1981, ch. 355, § 1.

32-19-03. Who subject to deficiency judgment.

The plaintiff may not obtain a deficiency judgment in a foreclosure of residential property with four or fewer units of up to forty contiguous acres [16.19 hectares] containing a residence occupied by the owner as a homestead. The plaintiff may obtain a deficiency judgment on agricultural land of more than forty acres [16.19 hectares] but solely for the difference between the amount of the debt and the fair market value of the land at the time of commencement of the action. The plaintiff may obtain a deficiency judgment in all other cases for the difference between the appraised value, as determined by a licensed appraiser appointed by the court at the request of the plaintiff, and the amount determined due. The cost of the appraisal is an allowable cost in the foreclosure action.

Source:

C. Civ. P. 1877, § 619; R.C. 1895 § 5868; R.C. 1899, § 5868; R.C. 1905 § 7479; C.L. 1913, § 8102; 1925 Supp., § 8102; S.L. 1933, ch. 155, § 1; 1937, ch. 159, § 1; R.C. 1943, § 32-1903; 2005, ch. 302, § 4.

Notes to Decisions

Proper Parties.

An assignee from a vendee of a land contract making payments thereunder is bound by the contract, and the vendor on foreclosure may recover for the deficiency against the assignee. D. S. B. Johnston Land Co. v. Whipple, 60 N.D. 334, 234 N.W. 59, 1930 N.D. LEXIS 235 (N.D. 1930).

Guarantors who were also stockholders of defendant corporation and who had secured the renewal of the corporation’s mortgage indebtedness at maturity were proper parties in foreclosure action. Agricultural Credit Corp. v. Land Inv. Co., 66 N.D. 343, 265 N.W. 410, 1936 N.D. LEXIS 174 (N.D. 1936).

Fact that parties signed joint and several note which was secured by the mortgage being foreclosed does not make them indispensable or necessary parties to the foreclosure. Liberty Nat'l Bank v. Daly, 96 N.W.2d 897, 1959 N.D. LEXIS 86 (N.D. 1959).

When Deficiency Judgment Rendered.

Court does not have to wait until sale of the mortgaged premises before rendering a deficiency judgment against third party liable on the debt, but can both foreclose and render judgment for the deficiency in one action. Bull v. Smith, 49 N.D. 337, 191 N.W. 624, 25 A.L.R. 1402 (1922), decided prior to the amendment to this chapter by Session Laws 1937, ch. 159; and Session Laws 1951, ch. 217; distinguished, Farmers' Nat'l Bank v. Wright, 54 N.D. 422, 209 N.W. 796, 1926 N.D. LEXIS 163 (N.D. 1926).

A vendor, in a suit to foreclose a vendee’s interest under a land contract, is entitled to a deficiency judgment for any amount remaining due after the sale of the land. D. S. B. Johnston Land Co. v. Whipple, 60 N.D. 334, 234 N.W. 59, 1930 N.D. LEXIS 235 (N.D. 1930).

Collateral References.

Mortgages 434, 435, 555-562.

55 Am. Jur. 2d, Mortgages, §§ 760-777.

59B C.J.S. Mortgages, §§ 794-796, 996-1000, 1009-1032.

Law Reviews.

Mortgages, Remedies, Effect of the North Dakota Deficiency Judgment Act, 25 Bar Briefs, State Bar Ass’n of N.D. 198 (1949).

Note: The Prohibition Against Recovering Attorney Fees In Mortgage Foreclosure: It’s Time For Delinquent Debtors To Pay The Piper In North Dakota, 87 N.D. L. Rev. 255 (2011).

32-19-04. What complaint shall state.

In an action for the foreclosure of a mortgage, the complaint must state sufficient allegations to identify the mortgage being foreclosed, to establish the applicable redemption period, and to determine whether a deficiency judgment will be sought and against which parties.

Source:

C. Civ. P. 1877, § 620; R.C. 1895, § 5869; R.C. 1899, § 5869; R.C. 1905, § 7480; C.L. 1913, § 8103; R.C. 1943, § 32-1904; S.L. 1951, ch. 217, § 1; 1957 Supp., § 32-1904; 2005, ch. 302, § 5.

Notes to Decisions

Action by Mortgagee on Debt.

In cases involving mortgages on real property only, this section and N.D.C.C. §§ 32-19-06 and 32-19-07, require the mortgagee to foreclose on the mortgage and prohibit an action by the mortgagee directly on the debt. Northern Trust Co. v. Buckeye Petroleum Co., 389 N.W.2d 616, 1986 N.D. LEXIS 341 (N.D. 1986).

Deficiency.

A lender that takes a mortgage on real property as security for a debt foregoes its right to proceed initially against the mortgagor directly on the debt, but receives in return the added protection of an interest in the property. The mortgagee may still recover any deficiency from the mortgagor, but must fully comply with the provisions of this section and N.D.C.C. § 32-19-06 to do so. H & F Hogs v. Huwe, 368 N.W.2d 553, 1985 N.D. LEXIS 326 (N.D. 1985).

The obvious intent of the statute is to require notice to the defendant in a foreclosure action that he is subject to personal liability for the balance of the debt remaining after sale of the mortgaged premises. Production Credit Ass'n v. Lund, 389 N.W.2d 585, 1986 N.D. LEXIS 339 (N.D. 1986).

Statement in plaintiff’s complaint that it “may” seek a deficiency judgment in a separate action provided the defendants with precisely the notice contemplated and required by this section. Use of the term “may” instead of “shall” did not render the notification less effective. Production Credit Ass'n v. Lund, 389 N.W.2d 585, 1986 N.D. LEXIS 339 (N.D. 1986).

North Dakota law does not impose an absolute prohibition against a mortgagee seeking a deficiency judgment. Rather, it requires that a mortgagee seeking a deficiency judgment proceed in an action separate from the foreclosure action and that the mortgagee so proceed only after foreclosure and sale of the property. United States v. Larson, 632 F. Supp. 1565, 1986 U.S. Dist. LEXIS 26394 (D.N.D. 1986).

N.D.C.C. § 32-19-07 precludes a mortgagee from bringing an action against a mortgagor for a personal money judgment except as permitted by this section and N.D.C.C. § 32-19-06, which allow a deficiency judgment under very limited circumstances and then only for the amount by which the sum adjudged to be due exceeds the fair value of the foreclosed premises as determined by a jury. Schiele v. First Nat'l Bank, 404 N.W.2d 479, 1987 N.D. LEXIS 303 (N.D. 1987).

Demurrable Complaint.

An averment in a complaint that no foreclosure proceedings had been instituted other than proceedings to foreclose by advertisement, which had been enjoined, does not comply with the statute and the complaint therefore is demurrable. Fisher v. Bouisson, 3 N.D. 493, 57 N.W. 505, 1893 N.D. LEXIS 43 (N.D. 1893).

Guarantors.

Guarantors are not included within the protection of the anti-deficiency statutes, N.D.C.C. §§ 32-19-04, 32-19-06 and 32-19-07. Bank of Kirkwood Plaza v. Mueller, 294 N.W.2d 640, 1980 N.D. LEXIS 265 (N.D. 1980).

Guaranty.
—In General.

Where mortgagors each signed a mortgage note and a written guaranty in the full amount of the mortgage note, it was improper for the lender bank to proceed against the personal guaranties of the mortgagors instead of foreclosing on the mortgage. First Nat'l Bank & Trust v. Ashton, 436 N.W.2d 215, 1989 N.D. LEXIS 37 (N.D. 1989).

—Municipal Bonds.

Holder of municipal industrial development revenue bonds could enforce a guaranty without regard to the anti-deficiency judgment statutes because there was no party that was personally liable for payment of the bonds, as contemplated by this section and N.D.C.C. § 32-19-06, which are anti-deficiency judgment statutes that provide protections for persons who are personally liable for debts secured by mortgages. State v. Larsen, 515 N.W.2d 178, 1994 N.D. LEXIS 98 (N.D. 1994).

Jury Required.

When a mortgagee chooses to foreclose against only one of several items of real estate collateral, the appropriate balance requires that the fair value of the foreclosed item be determined by a jury before the remaining debt is enforced against the other items of real estate collateral. Schiele v. First Nat'l Bank, 404 N.W.2d 479, 1987 N.D. LEXIS 303 (N.D. 1987).

Partners’ Guaranties of Partnership Mortgage Debt.

When general partners personally guaranty a general partnership mortgage debt, the anti-deficiency statutes are applicable, and the procedures for deficiency judgments outlined in First State Bank v. Ihringer, 217 N.W.2d 857 (1974), must be satisfied; however, because of contractual expectations, this decision would be applied prospectively. First Interstate Bank v. Larson, 475 N.W.2d 538 (N.D. 1991), decided prior to the amendment to N.D.C.C. §§ 22-01-12 and 45-06-07, by Session Laws 1993, Ch. 246.

Personal Liability.

No party was “personally liable”, as contemplated by this section and N.D.C.C. § 32-19-06, on a bond issued by a municipality pursuant to the Municipal Industrial Development Act (N.D.C.C. §§ 40-57-01 et seq.), which provided that it is payable solely from revenue derived by the municipality from its lease of the project and that the bond was not a debt of the issuer. First Nat'l Bank & Trust Co. v. Anseth, 503 N.W.2d 568, 1993 N.D. LEXIS 148 (N.D. 1993).

Prior Actions at Law.

This statute clearly contemplates that actions at law may have been begun and pursued to judgment prior to the commencement of the foreclosure action. Burrows v. Paulson, 64 N.D. 557, 254 N.W. 471 (1934), decided prior to the amendment to this chapter by Session Laws 1937, ch. 159; and Session Laws 1951, ch. 217. Liberty Nat'l Bank v. Daly, 96 N.W.2d 897, 1959 N.D. LEXIS 86 (N.D. 1959).

Sufficient Allegation.

An allegation of an assignment of a mortgage to a plaintiff and of ownership of the notes sufficiently shows plaintiff’s title thereto, as well as to the mortgage, although the notes appear to be payable to another person. Fisher v. Bouisson, 3 N.D. 493, 57 N.W. 505, 1893 N.D. LEXIS 43 (N.D. 1893).

Tax Sale.

Mortgagee which lost its right to and interest in the property by failing to redeem from tax sale was not entitled to pursue a foreclosure action, nor to sue the mortgagors directly on the debt evidenced by the promissory note. H & F Hogs v. Huwe, 368 N.W.2d 553, 1985 N.D. LEXIS 326 (N.D. 1985).

Collateral References.

Mortgages 444-453.

55 Am. Jur. 2d, Mortgages, §§ 512 et seq.

32-19-05. When judgment at law obtained. [Repealed]

Repealed by S.L. 2005, ch. 302, § 30.

32-19-06. What judgment must contain.

In any action for the foreclosure of a real estate mortgage, the court shall render judgment for the amount found to be due and the costs of the action, and shall order a sale of the premises to pay the amount adjudged to be due. The court may order delivery of the possession of the premises to the purchaser after the expiration of the redemption period unless otherwise ordered by the court pursuant to section 32-19-19. The judgment must provide that during the redemption period the debtor or owner of the premises is entitled to the possession, rents, use, and benefit of the real property sold except as provided by section 32-19-19.

Source:

C. Civ. P. 1877, § 617; R.C. 1895, § 5866; R.C. 1899, § 5866; R.C. 1905, § 7477; C.L. 1913, § 8100; S.L. 1933, ch. 155, § 1; 1937, ch. 159, § 1; R.C. 1943, § 32-1906; S.L. 1951, ch. 217, § 2; 1957 Supp., § 32-1906; S.L. 1989, ch. 395, § 2; 2005, ch. 303, § 1; 2005, ch. 302, § 6.

Derivation:

Harston’s (Cal.) Practice, 726.

Cross-References.

Action to set aside mortgage foreclosure, time limitation, see N.D.C.C. § 1-05-06.

Time allowed to correct default after service of notice of cancellation of land contract, see N.D.C.C. § 32-18-04.

Validation of foreclosure where proceedings defective, see N.D.C.C. § 1-05-05.

Notes to Decisions

Action by Mortgagee on Debt.

In cases involving mortgages on real property only, this section and N.D.C.C. §§ 32-19-04 and 32-19-07, require the mortgagee to foreclose on the mortgage and prohibit an action by the mortgagee directly on the debt. Northern Trust Co. v. Buckeye Petroleum Co., 389 N.W.2d 616, 1986 N.D. LEXIS 341 (N.D. 1986).

Applicability of Anti-Deficiency Statutes.

The anti-deficiency statutes apply to a mortgage and guaranty given to obtain a release of a judgment. Borsheim v. Owan, 467 N.W.2d 95, 1991 N.D. LEXIS 48 (N.D. 1991).

The prohibition on deficiency judgments is not limited to those transactions wherein the mortgage was given for the immediate exchange of money. Borsheim v. Owan, 467 N.W.2d 95, 1991 N.D. LEXIS 48 (N.D. 1991).

Assignment of Mortgage.

The plaintiffs’ assignment of a real estate mortgage in which they were mortgagees as security for their own debt was not a transaction governed by Article 9 on secured transactions of the UCC; thus, the assignment of the farm mortgage was real property collateral subject to the rights and remedies of real property laws. Schiele v. First Nat'l Bank, 404 N.W.2d 479, 1987 N.D. LEXIS 303 (N.D. 1987).

Damages.

Damages normally recoverable in a breach of contract case are not recoverable on a contract for deed cancellation; rather contract for deed vendors are awarded the same anti-deficiency protection as mortgagors of foreclosed real estate. In re Faiman, 70 B.R. 74, 1987 Bankr. LEXIS 182 (Bankr. D.N.D. 1987).

Decree of Sale.

This section does not require that a judgment in a foreclosure action contain a decree of sale; in a consolidated action for foreclosure of mortgage securing partnership debt and for recovery against individual partners on their guaranties of payment of the partnership debt, it was proper for judgments to give mortgagee the option to proceed first against the individual partners and attempt to collect on their guaranties with recovery to be set off against recovery in any later attempt to foreclose, or to immediately seek a decree of sale in the foreclosure action which would have the effect of satisfying in full the judgment or any balance due thereunder in the guaranty action. Mandan Sec. Bank v. Heinsohn, 320 N.W.2d 494, 1982 N.D. LEXIS 298 (N.D. 1982), overruled, First Interstate Bank, N.A. v. Larson, 475 N.W.2d 538, 1991 N.D. LEXIS 166 (N.D. 1991).

Deficiency.

A lender that takes a mortgage on real property as security for a debt foregoes its right to proceed initially against the mortgagor directly on the debt, but receives in return the added protection of an interest in the property. The mortgagee may still recover any deficiency from the mortgagor, but must fully comply with the provisions of this section and section 32-19-04 to do so. H & F Hogs v. Huwe, 368 N.W.2d 553, 1985 N.D. LEXIS 326 (N.D. 1985).

If a vendor of a land contract commences an action for the foreclosure of the land contract, the anti-deficiency statutes provide that the court shall not render a deficiency judgment against the vendee except under very limited circumstances provided for in this section. In order to obtain a deficiency judgment, the vendor must bring a separate action against the party personally liable for that part of the debt, with recovery limited to the difference between the amount adjudged to be due, plus the costs of the action, and the fair market value of the land. Hagan v. Havnvik, 421 N.W.2d 56, 1988 N.D. LEXIS 72 (N.D. 1988).

In a divorce case, a wife’s money judgment for unpaid property distribution payments, interest, and other items was not a deficiency judgment and was not subject to the three-year limitations period imposed by this section. Kautzman v. Kautzman, 2003 ND 140, 668 N.W.2d 59, 2003 N.D. LEXIS 153 (N.D. 2003) sub. nom.Dietz v. Kautzman, 2004 ND 119, 681 N.W.2d 437, 2004 N.D. LEXIS 216 (N.D. 2004).

In a suit for a deficiency judgment against loan guarantors, the district court properly held that the guarantors were not within the protection of N.D.C.C. § 32-19-06; the guarantors’ liability was premised on a separate contract of guaranty rather than obligations imposed by the notes and mortgages. Alerus Fin., N.A. v. Marcil Group Inc., 2011 ND 205, 806 N.W.2d 160, 2011 N.D. LEXIS 203 (N.D. 2011).

Deficiency Under Land Contract.

A vendor in a suit to foreclose a vendee’s interest under a land contract is entitled to a deficiency judgment for any amount remaining due after the sale of the land. D. S. B. Johnston Land Co. v. Whipple, 60 N.D. 334, 234 N.W. 59, 1930 N.D. LEXIS 235 (N.D. 1930).

Estoppel.

Trial court was correct in refusing to hold debtor estopped from using the anti-deficiency judgment statutes in his defense where the only conduct relied upon by the bank was debtor’s promise to do acts which were already required of him under the express terms of the mortgage agreement. Dakota Bank & Trust Co. v. Funfar, 443 N.W.2d 289, 1989 N.D. LEXIS 126 (N.D. 1989).

Evidence.

All evidence bearing on the value of the property and the circumstances of the underlying transaction can be presented to the jury, including the amount of the mortgage, the amount of any subsequent mortgage, fluctuations in land values, the remaining amount claimed to be due on the debt, and market value. Federal Land Bank v. Bergquist, 425 N.W.2d 360, 1988 N.D. LEXIS 150 (N.D. 1988).

Extension of Redemption Period.

Where the running of the period of redemption is not tolled either by statute or by an appropriate order of court, and title to property vests in holder of sheriff’s certificate of sale, the court cannot thereafter divest this title and again extend the redemption period. First Nat'l Bank v. Knauss, 68 N.D. 227, 277 N.W. 516, 1938 N.D. LEXIS 100 (N.D. 1938).

Failure to Plead Deficiency.

Where no deficiency judgment is asked for or indicated in the complaint, the judgment will be satisfied by a sale of the property in an action to foreclose a land contract. Schaff v. Kennelly, 61 N.W.2d 538, 1953 N.D. LEXIS 86 (N.D. 1953).

Fair Value.

“Fair value” means the value of the property which will produce a fair and equitable result between the parties. Federal Land Bank v. Bergquist, 425 N.W.2d 360, 1988 N.D. LEXIS 150 (N.D. 1988).

In an action for deficiency judgment where the court allowed an expert witness to define the meaning of “fair value” under this section, the failure of the trial court to define the term “fair value” for the jury was reversible error. Federal Land Bank v. Bergquist, 425 N.W.2d 360, 1988 N.D. LEXIS 150 (N.D. 1988).

The Legislature intended “fair value” to have a broadly defined meaning, embracing many factors. “Fair value” means the value of the property which will produce a fair and equitable result between the parties. Schiele v. First Nat'l Bank, 436 N.W.2d 248, 1989 N.D. LEXIS 43 (N.D. 1989).

The anti-deficiency statutes do not distinguish between farmland and other types of property in requiring a “fair value” determination. Schiele v. First Nat'l Bank, 436 N.W.2d 248, 1989 N.D. LEXIS 43 (N.D. 1989).

Guarantors.

Guarantors are not included within the protection of the anti-deficiency statutes, N.D.C.C. §§ 32-19-04, 32-19-06 and 32-19-07; this section did not preclude a bank from suing the mortgagor in a foreclosure action and also maintaining an action against guarantors, who were nonmortgagors, and who had executed contracts of absolute guaranty of payment; however, bank was not entitled to a double recovery and upon payment of the sums due under the terms of the guaranty contracts, the guarantors were entitled to an assignment of all of the interests in the property held by the bank. Bank of Kirkwood Plaza v. Mueller, 294 N.W.2d 640, 1980 N.D. LEXIS 265 (N.D. 1980).

Where mortgagors each signed a mortgage note and a written guaranty in the full amount of the mortgage note, it was improper for the lender bank to proceed against the personal guaranties of the mortgagors instead of foreclosing on the mortgage. First Nat'l Bank & Trust v. Ashton, 436 N.W.2d 215, 1989 N.D. LEXIS 37 (N.D. 1989).

Jury Instructions.

It is appropriate to advise the jury of the effect of its determination; the jury should be allowed to hear about the amount owed on the mortgage, and should be instructed that the mortgagee will be entitled to a deficiency judgment only for the difference between that amount and the fair value of the property as determined by the jury. Federal Land Bank v. Bergquist, 425 N.W.2d 360, 1988 N.D. LEXIS 150 (N.D. 1988).

Jury to Determine Fair Value.

When a mortgagee chooses to foreclose against only one of several items of real estate collateral, the appropriate balance requires that the fair value of the foreclosed item be determined by a jury before the remaining debt is enforced against the other items of real estate collateral. Schiele v. First Nat'l Bank, 404 N.W.2d 479, 1987 N.D. LEXIS 303 (N.D. 1987).

Limit on Recovery.

A promissory note was executed in conjunction with the taking of a mortgage. A debt was created. N.D.C.C. § 32-19-07 declares that, except as otherwise provided in N.D.C.C. § 32-19-04 and this section, a mortgagee may not bring an action for the recovery of any part of a debt secured by a mortgage, but is entitled only to a foreclosure of the mortgage. Borsheim v. Owan, 467 N.W.2d 95, 1991 N.D. LEXIS 48 (N.D. 1991).

Limited Circumstances.

N.D.C.C. § 32-19-07 precludes a mortgagee from bringing an action against a mortgagor for a personal money judgment except as permitted by N.D.C.C. § 32-19-04 and this section, which allow a deficiency judgment under very limited circumstances and then only for the amount by which the sum adjudged to be due exceeds the fair value of the foreclosed premises as determined by a jury. Schiele v. First Nat'l Bank, 404 N.W.2d 479, 1987 N.D. LEXIS 303 (N.D. 1987).

Money Loaned upon Real Estate.

A judgment creditor released its judgment in exchange for a cash payment, a promissory note signed by all individual defendants, a mortgage on unimproved property, and a general continuing guaranty signed by all individual defendants, who jointly and severally guaranteed payment of the indebtedness evidenced by the note. The guaranty also provided that each individual guarantor “specifically waives and releases his right to rely upon or seek protection against a deficiency judgment by virtue of any statutes or supreme court decisions.” This transaction fell within the term “payment of money loaned upon real estate,” as used in section 32-19-07. Borsheim v. Owan, 467 N.W.2d 95, 1991 N.D. LEXIS 48 (N.D. 1991).

Mortgage Generally.

Any obligation capable of being reduced to a money value may be secured by a mortgage. Borsheim v. Owan, 467 N.W.2d 95, 1991 N.D. LEXIS 48 (N.D. 1991).

Mortgagee’s Options on Default.

Under these statutes a mortgagee or vendor has three options upon default: (1) foreclose without asking for a deficiency judgment, (2) foreclose, asking for a deficiency judgment in a separate action after the sale of the property, and obtain a judgment for only the difference between the mortgage debt plus costs and the fair value determined by a jury against both mortgagors and nonmortgagors personally liable on the note, or (3) sue on the note without foreclosure but with recovery limited to the difference between the amount due on the note plus costs and the fair value of the property determined by a jury. Brunsoman v. Scarlett, 465 N.W.2d 162, 1991 N.D. LEXIS 3 (N.D. 1991).

Municipal Industrial Development Revenue Bonds.

Holder of municipal industrial development revenue bonds could enforce a guaranty without regard to the anti-deficiency judgment statutes because there was no party that was personally liable for payment of the bonds, as contemplated by N.D.C.C. § 32-19-04 and this section, which are anti-deficiency judgment statutes that provide protections for persons who are personally liable for debts secured by mortgages. State v. Larsen, 515 N.W.2d 178, 1994 N.D. LEXIS 98 (N.D. 1994).

Note and Mortgage.

Where deficiency judgment could not be entered in foreclosure proceedings on a note and mortgage, under C.L. 1913, § 8100, as amended by S.L. 1933, ch. 155, court’s authority was limited to application of amount realized through sale of security and the determination of the amount of the deficiency. Lincoln Nat'l Life Ins. Co. v. Kelly, 73 N.D. 622, 17 N.W.2d 906, 1945 N.D. LEXIS 77 (N.D. 1945).

Parties who had signed joint and several note which was secured by the mortgage being foreclosed were not indispensable or necessary parties to the foreclosure. Liberty Nat'l Bank v. Daly, 96 N.W.2d 897, 1959 N.D. LEXIS 86 (N.D. 1959).

Partners’ Guaranties of Partnership Mortgage Debt.

When general partners personally guaranty a general partnership mortgage debt, the anti-deficiency statutes are applicable, and the procedures for deficiency judgments outlined in First State Bank v. Ihringer, 217 N.W.2d 857 (1974), must be satisfied; however, because of contractual expectations, this decision would be applied prospectively. First Interstate Bank v. Larson, 475 N.W.2d 538 (N.D. 1991), decided prior to the amendment to N.D.C.C. §§ 22-01-12 and 45-06-07, by Session Laws 1993, Ch. 246.

Personal Liability.

No party was “personally liable”, as contemplated by N.D.C.C. § 32-19-04 and this section, on a bond issued by a municipality pursuant to the Municipal Industrial Development Act (N.D.C.C. § 40-57-01 et seq.), which provided that it is payable solely from revenue derived by the municipality from its lease of the project and that the bond was not a debt of the issuer. First Nat'l Bank & Trust Co. v. Anseth, 503 N.W.2d 568, 1993 N.D. LEXIS 148 (N.D. 1993).

Personal Property Included in Sale.

Inclusion of personal property in real estate sale contract did not remove it from purview of this section; vendor or successor in interest of contract for sale of realty is barred from maintaining action for personal money judgment under statutes limiting deficiency judgments and suits upon moneys owing secured by land contract except in connection with, or subsequent to, cancellation or foreclosure of land contract. McKee v. Kinev, 160 N.W.2d 97, 1968 N.D. LEXIS 68 (N.D. 1968).

Predefault Waiver of Protection.

A predefault contractual waiver of the protections of the anti-deficiency statutes is ineffective. Borsheim v. Owan, 467 N.W.2d 95, 1991 N.D. LEXIS 48 (N.D. 1991).

Prerequisite to General Execution.

General execution may not issue even though it appears that the mortgaged property is valueless, and a return to that effect by the sheriff upon a special execution after a formal sale is a preliminary requirement. Farmers' Nat'l Bank v. Wright, 54 N.D. 422, 209 N.W. 796, 1926 N.D. LEXIS 163 (N.D. 1926).

Procedure.

District court did not err in failing to award the decedent's relatives a rent payment they made while cancellation actions were pending against them where the mortgage foreclosure statutes did not apply, cancellation by action was not subject to a statutory period of redemption, and the award of rental payments was not a money judgment, but was a distribution of rents collected during the pendency of the actions. Beckstrand v. Beckstrand, 2017 ND 20, 890 N.W.2d 213, 2017 N.D. LEXIS 28 (N.D. 2017).

Mortgagee may sue on the indebtedness secured by his mortgage, obtain a judgment in such suit, and satisfy it so far as he is able out of the mortgagor’s property and thereafter proceed to foreclose the security to satisfy the unpaid portion of his judgment. Burrows v. Paulson, 64 N.D. 557, 254 N.W. 471 (1934), decided prior to the amendment to this chapter by Session Laws 1937, ch. 159; and Session Laws 1951, ch. 217.

Promissory Note.

When a promissory note is executed in conjunction with the taking of a mortgage, the provisions of the State’s anti-deficiency statutes apply. Gust v. Peoples & Enderlin State Bank, 447 N.W.2d 914, 1989 N.D. LEXIS 209 (N.D. 1989).

Bank’s argument that the anti-deficiency judgment statutes were inapplicable that it was free to pursue its action on promissory note because its collateral real estate mortgage had lapsed under the terms of N.D.C.C. § 35-03-17 was without merit. Gust v. Peoples & Enderlin State Bank, 447 N.W.2d 914, 1989 N.D. LEXIS 209 (N.D. 1989).

Property Subject to Separation Decree.

Even though quarter-section of land awarded wife in separation decree under former N.D.C.C. § 14-06-03 (see now N.D.C.C. § 14-05-27), was subject to lien for prior mortgage, remaining three-quarters not subject to separation decree were to be sold first to satisfy judgment in event of foreclosure. Voltin v. Voltin, 179 N.W.2d 127, 1970 N.D. LEXIS 126 (N.D. 1970).

Recovery Against Nonmortgagor Debtor.

Mortgagee may sue a nonmortgagor debtor who is personally liable on note without first foreclosing mortgage but recovery is limited to the difference between amount due on note, plus costs, and fair value of property. First State Bank v. Ihringer, 217 N.W.2d 857, 1974 N.D. LEXIS 231 (N.D. 1974).

Redemption.

The possibility of redemption at the bid price during the statutory redemption period does not equate with the purpose of the fair value determination required by this section. Schiele v. First Nat'l Bank, 404 N.W.2d 479, 1987 N.D. LEXIS 303 (N.D. 1987).

Remedies Available.

Remedies of mortgagee or vendor after default are to: (1) foreclose without asking for deficiency judgment; (2) foreclose, asking for deficiency judgment in separate action after sale of the property, and obtain a judgment for only the difference between the mortgage debt plus costs and the fair value determined by a jury against both mortgagors and nonmortgagors personally liable on note; or (3) sue on note without foreclosure but with recovery limited to difference between amount due on note plus costs and fair value of property determined by jury. First State Bank v. Ihringer, 217 N.W.2d 857, 1974 N.D. LEXIS 231 (N.D. 1974).

Trial court erred in awarding vendors a money judgment in their action upon default of a contract for deed where the judgment also provided that if the money judgment was not satisfied before a certain date, then the contract for deed was, without more, cancelled or the vendors could proceed to foreclose the contract for deed pursuant to this section, with the money judgment not being extinguished in either event; the award of the money judgment in addition to the other remedies provided by the judgment would permit the vendors to accomplish indirectly what they could not accomplish directly through an action pursuant to the cancellation statutes, N.D.C.C. ch. 32-18, or foreclosure statutes, ch. 32-19. Langenes v. Bullinger, 328 N.W.2d 241, 1982 N.D. LEXIS 372 (N.D. 1982).

Separate Agreement.

Where, in exchange for the bank’s agreement to forego the monthly escrow payment, debtor entered into a “separate” contract with the bank, apart from the note and mortgage, to pay the real estate taxes and assessments, court did not permit the bank to evade the anti-deficiency judgment statutes through the guise of this “separate” agreement; the mortgage at all times remained intact as security for the payment of principal and interest and debtor’s obligations under the “separate” agreement were with the exception of principal and interest, precisely the same obligations debtor had pursuant to the terms of the mortgage. Dakota Bank & Trust Co. v. Funfar, 443 N.W.2d 289, 1989 N.D. LEXIS 126 (N.D. 1989).

Tax Sale.

Mortgagee which lost its right to and interest in the property by failing to redeem from tax sale was not entitled to pursue a foreclosure action, nor to sue the mortgagors directly on the debt evidence by the promissory note. H & F Hogs v. Huwe, 368 N.W.2d 553, 1985 N.D. LEXIS 326 (N.D. 1985).

Waiver of Rights by Debtor.

The rights and defenses granted debtors by the anti-deficiency judgment law would be largely illusory if a prospective creditor could compel a prospective debtor to waive them at the time the mortgage is executed. Because of the public policy against deficiency judgments, the procedural rights granted mortgagors and vendees under the anti-deficiency judgment law cannot be contractually waived in advance of default. Brunsoman v. Scarlett, 465 N.W.2d 162, 1991 N.D. LEXIS 3 (N.D. 1991).

A mortgagor or vendee who, after default, determines that his or her position in a controversy can be improved by waiving certain procedural rights and benefits granted by the anti-deficiency judgment law should not be precluded from contractually waiving those rights. In recognition of public policy which encourages settlements, contractual post-default waivers of a debtor’s procedural rights under the anti-deficiency judgment law do not violate public policy. Brunsoman v. Scarlett, 465 N.W.2d 162, 1991 N.D. LEXIS 3 (N.D. 1991).

Considering the strong public policy against deficiency judgments and the view that the anti-deficiency judgment statutes are debtor-protection legislation to be construed “strictly in favor of mortgagors” a debtor’s contractual waiver of procedural rights under these statutes must be clear, unequivocal, and unambiguous. The waiver cannot arise by implication and the mortgagee or vendor bears the risk of any ambiguity in the agreement. Brunsoman v. Scarlett, 465 N.W.2d 162, 1991 N.D. LEXIS 3 (N.D. 1991).

Waiver of Rights by Lender.

Bank’s agreement to be bound by the provisions of the Short-Term Mortgage Redemption Act, including N.D.C.C. § 32-19.1-07, which prohibits the taking of a deficiency judgment, was a waiver of its right to seek a deficiency judgment pursuant to this section, even though the acreage of the land in question exceeded the statutory limit for a short-term mortgage. First State Bank v. Anderson, 452 N.W.2d 90, 1990 N.D. LEXIS 39 (N.D. 1990).

Collateral References.

Mortgages 483-502, 532, 541-544, 547-549, 561.1, 561.7, 580-582; Vendor and Purchaser 285-288, 291, 294.

55 Am. Jur. 2d, Mortgages, §§ 699-716.

59A C.J.S. Mortgages, §§ 1046 eq seq; 92A C.J.S. Vendor and Purchaser, §§ 568-573.

Conflict of laws as to application of statute proscribing or limiting availability of action for deficiency after sale of collateral real estate, 44 A.L.R.3d 922.

Effect upon obligation of guarantor or surety of statute forbidding or restricting deficiency judgments, 49 A.L.R.3d 554.

Law Reviews.

Cancellation of Land Contracts, 32 N.D. L. Rev. 5 (1956).

Specific Performance of Land Contracts in North Dakota, 26 Bar Briefs, State Bar Ass’n of N.D. 389 (1950).

Mortgages — North Dakota’s Anti-Deficiency Statute Defined, 65 N.D. L. Rev. 127 (1989).

Summary of significant decisions rendered by the North Dakota Supreme Court in 1989 relating to vendors and purchasers, 65 N.D. L. Rev. 595 (1989).

32-19-06.1. Deficiency judgments on commercial real property.

In an action involving the foreclosure of a mortgage on commercial real property, the plaintiff shall state in the pleading whether a deficiency judgment will be sought and if sought shall identify the parties claimed to be personally liable and demand a deficiency judgment against those parties. Within twenty days after the completion of the appraisal, the appraiser shall provide the plaintiff and file with the clerk of court a written report, including the fair market value of the property. The plaintiff shall mail a copy of the appraisal to a party that may be personally liable at the party’s last-known residences or business addresses by first-class mail. At the time of the entry of the judgment, the court shall include in its findings of fact the fair market value of the property and the amount of any prior liens on the property. If the fair market value and the amount of any prior liens are less than the amount found to be due to the plaintiff, the court shall identify each person who is liable for any deficiency after the sheriff’s sale. The foreclosure judgment must be the balance then due and owing on the mortgage, plus costs. Upon entry of an order confirming the sheriff’s sale, the clerk of court shall note the amount bid at the sheriff’s sale, less the cost of the sheriff’s sale as a credit on the foreclosure judgment, which credit may not be less than the fair market value established by the court. Any amount actually paid in excess of the foreclosure judgment constitutes surplus payable to the debtor pursuant to section 28-23-09. The clerk shall enter a money judgment to the extent of the deficiency against those parties found by the court to be personally liable, then the plaintiff may pursue the same remedies to collect the deficiency judgment as are available to collect other money judgments. The deficiency judgment must be for the entire amount found to be due the foreclosing party in the foreclosure judgment, together with interest at the rate provided in the note secured by the mortgage, less the amount credited by the clerk of court. In addition to the appraisal, the court in its determination of the fair market value of the property may consider affidavits from the parties or other proof of paramount liens and other matters that may affect the value.

Source:

S.L. 1993, ch. 342, § 1; 1995, ch. 330, § 1; 2005, ch. 302, § 7.

32-19-06.2. Deficiency judgments on agricultural land.

If the complaint in an action to foreclose on agricultural land of more than forty acres [16.19 hectares] has provided for a deficiency judgment, a separate action for the deficiency must be brought within ninety days after the sheriff’s sale. In the separate action, a deficiency judgment may be entered, but may not be in excess of the amount by which the sum adjudged to be due and the costs of the action exceed the fair market value of the mortgaged premises. There is not a presumption that the premises sold for the fair market value. The court may not render a deficiency judgment unless the fair market value as determined by the court is less than the sum adjudged to be due and costs of the action. Fifteen days’ notice of the time and place for determination of fair market value must be given to all parties against whom personal judgment is sought. Any party may offer evidence to show the fair market value even though that party may not have otherwise appeared in the action for a deficiency judgment. Any deficiency judgment obtained may only be enforced by execution within three years from the date of entry of the judgment. If the judgment is not collected within three years, the judgment expires. As used in this section, “fair market value” means the most probable price that real property can be sold for in the open market by a willing seller to a willing buyer, neither acting under compulsion and both exercising reasonable judgment.

Source:

S.L. 2005, ch. 302, § 8; 2005, ch. 303, § 2.

32-19-07. Other suits permitted.

Notwithstanding any other provision of state law, if a promissory note or other obligation and a mortgage, other than a first mortgage, upon real estate have been given to secure a debt contracted on or after August 1, 1993, a mortgagee may bring an action on the promissory note if the mortgagee waives the right to foreclose the mortgage given to secure the note. Allowing a mortgagee to bring an action on the promissory note or other obligation of the mortgagor if the mortgagee waives the right to foreclosure of the mortgage given to secure the note applies only to residential real property consisting of four or fewer residential units.

Source:

S.L. 1937, ch. 159, §§ 2, 3; R.C. 1943, § 32-1907; S.L. 1951, ch. 217, § 3; 1957 Supp., § 32-1907; S.L. 1993, ch. 343, § 1; 2005, ch. 302, § 9.

Notes to Decisions

In General.

This statute was not intended to put a limitation on the subject matter jurisdiction of the district courts. Instead, the purpose of this statute is to prevent creditors from obtaining deficiency judgments against mortgagors except under statutorily prescribed limitations, and it is the function of the district court to enforce this statute when applicable. First Nat'l Bank v. Bjorgen, 389 N.W.2d 789, 1986 N.D. LEXIS 349 (N.D. 1986).

Action by Mortgagee on Debt.

In cases involving mortgages on real property only, this section and N.D.C.C. §§ 32-19-04 and 32-19-06, require the mortgagee to foreclose on the mortgage and prohibit an action by the mortgagee directly on the debt. Northern Trust Co. v. Buckeye Petroleum Co., 389 N.W.2d 616, 1986 N.D. LEXIS 341 (N.D. 1986).

Applicability of Anti-Deficiency Statutes.

The anti-deficiency statutes apply to a mortgage and guaranty given to obtain a release of a judgment. Borsheim v. Owan, 467 N.W.2d 95, 1991 N.D. LEXIS 48 (N.D. 1991).

The prohibition on deficiency judgments is not limited to those transactions wherein the mortgage was given for the immediate exchange of money. Borsheim v. Owan, 467 N.W.2d 95, 1991 N.D. LEXIS 48 (N.D. 1991).

Assignment of Mortgage.

The plaintiffs’ assignment of a real estate mortgage in which they were mortgagees as security for their own debt was not a transaction governed by Article 9 on secured transactions of the UCC; thus, the assignment of the farm mortgage was real property collateral subject to the rights and remedies of real property laws. Schiele v. First Nat'l Bank, 404 N.W.2d 479, 1987 N.D. LEXIS 303 (N.D. 1987).

Assignments.

Assignment of rents agreement given with the real estate mortgage was enforceable by mortgagee prior to foreclosure of the mortgage; this section was not applicable where no foreclosure had been started. East Grand Forks Fed. Sav. & Loan Ass'n v. Mueller, 198 N.W.2d 124, 1972 N.D. LEXIS 179 (N.D. 1972).

Bankruptcy.

In North Dakota, a contract for deed is essentially a mortgage and not an executory contract; therefore, debtor could not be compelled to assume or reject purchaser’s interest in contract for deed under United States Bankruptcy Code. In re Faiman, 70 B.R. 74, 1987 Bankr. LEXIS 182 (Bankr. D.N.D. 1987).

Chattel Mortgage.

Where a note was secured by both a real estate mortgage and a chattel mortgage, the holder of such note was not barred by this section from foreclosing the chattel mortgage without first foreclosing the real estate mortgage and without reference to it. Bank of Killdeer v. Fettig, 129 N.W.2d 365, 1964 N.D. LEXIS 112 (N.D. 1964).

Damages.

Damages normally recoverable in a breach of contract case are not recoverable on a contract for deed cancellation; rather contract for deed vendors are awarded the same anti-deficiency protection as mortgagors of foreclosed real estate. In re Faiman, 70 B.R. 74, 1987 Bankr. LEXIS 182 (Bankr. D.N.D. 1987).

Deficiency.

A lender that takes a mortgage on real property as security for a debt foregoes its right to proceed initially against the mortgagor directly on the debt, but receives in return the added protection of an interest in the property. The mortgagee may still recover any deficiency from the mortgagor, but must fully comply with the provisions of this section and section 32-19-06 to do so. H & F Hogs v. Huwe, 368 N.W.2d 553, 1985 N.D. LEXIS 326 (N.D. 1985).

North Dakota law does not impose an absolute prohibition against a mortgagee seeking a deficiency judgment. Rather, it requires that a mortgagee seeking a deficiency judgment proceed in an action separate from the foreclosure action and that the mortgagee so proceed only after foreclosure and sale of the property. United States v. Larson, 632 F. Supp. 1565, 1986 U.S. Dist. LEXIS 26394 (D.N.D. 1986).

Foreclosure Required.

Mortgagee was barred from any action on secured debt when he did not resort to foreclosure against real property. Loraas v. Connolly, 131 N.W.2d 581, 1964 N.D. LEXIS 144 (N.D. 1964).

Guarantors.

Guarantors are not included within the protection of the anti-deficiency statutes, N.D.C.C. §§ 32-19-04, 32-19-06 and 32-19-07; this section did not preclude a bank from suing the mortgagor in a foreclosure action and also maintaining an action against guarantors, who were nonmortgagors, and who had executed contracts of absolute guaranty of payment; however, bank was not entitled to a double recovery and upon payment of sums due under the terms of the guaranty contracts, the guarantors were entitled to an assignment of all of the interests in the property held by the bank. Bank of Kirkwood Plaza v. Mueller, 294 N.W.2d 640, 1980 N.D. LEXIS 265 (N.D. 1980).

Where mortgagors each signed a mortgage note and a written guaranty in the full amount of the mortgage note, it was improper for the lender bank to proceed against the personal guaranties of the mortgagors instead of foreclosing on the mortgage. First Nat'l Bank & Trust v. Ashton, 436 N.W.2d 215, 1989 N.D. LEXIS 37 (N.D. 1989).

Inclusion of Personal Property in Sale.

Inclusion of personal property in real estate sale contract did not remove it from purview of this section; vendor or successor in interest of contract for sale of realty is barred from maintaining action for personal money judgment under statutes limiting deficiency judgments and suits upon moneys owing secured by land contract except in connection with, or subsequent to, cancellation or foreclosure of land contract. McKee v. Kinev, 160 N.W.2d 97, 1968 N.D. LEXIS 68 (N.D. 1968).

Jury Required.

When a mortgagee chooses to foreclose against only one of several items of real estate collateral, the appropriate balance requires that the fair value of the foreclosed item be determined by a jury before the remaining debt is enforced against the other items of real estate collateral. Schiele v. First Nat'l Bank, 404 N.W.2d 479, 1987 N.D. LEXIS 303 (N.D. 1987).

Legislative Intent.

This section clearly indicates that the intention of the legislature was to prevent deficiency judgments in the event of foreclosure, except those deficiency judgments provided for by N.D.C.C. §§ 32-19-04 and 32-19-06. East Grand Forks Fed. Sav. & Loan Ass'n v. Mueller, 198 N.W.2d 124, 1972 N.D. LEXIS 179 (N.D. 1972).

Limit on Recovery.

A promissory note was executed in conjunction with the taking of a mortgage. A debt was created. This section declares that, except as otherwise provided in N.D.C.C. §§ 32-19-04 and 32-19-06, a mortgagee may not bring an action for the recovery of any part of a debt secured by a mortgage, but is entitled only to a foreclosure of the mortgage. Borsheim v. Owan, 467 N.W.2d 95, 1991 N.D. LEXIS 48 (N.D. 1991).

Limited Circumstances.

This section precludes a mortgagee from bringing an action against a mortgagor for a personal money judgment except as permitted by N.D.C.C. §§ 32-19-04 and 32-19-06, which allow a deficiency judgment under very limited circumstances and then only for the amount by which the sum adjudged to be due exceeds the fair value of the foreclosed premises as determined by a jury. Schiele v. First Nat'l Bank, 404 N.W.2d 479, 1987 N.D. LEXIS 303 (N.D. 1987).

Loan of Money.

For a case discussing the meaning of “loan of money” or “money loaned” within the context of anti-deficiency statutes, see Borsheim v. Owan, 467 N.W.2d 95, 1991 N.D. LEXIS 48 (N.D. 1991).

“Money Loaned upon Real Estate”.

A judgment creditor released its judgment in exchange for a cash payment, a promissory note signed by all individual defendants, a mortgage on unimproved property, and a general continuing guaranty signed by all individual defendants, who jointly and severally guaranteed payment of the indebtedness evidenced by the note. The guaranty also provided that each individual guarantor “specifically waives and releases his right to rely upon or seek protection against a deficiency judgment by virtue of any statutes or supreme court decisions.” This transaction fell within the term “payment of money loaned upon real estate,” as used in this section. Borsheim v. Owan, 467 N.W.2d 95, 1991 N.D. LEXIS 48 (N.D. 1991).

Mortgage Generally.

Any obligation capable of being reduced to a money value may be secured by a mortgage. Borsheim v. Owan, 467 N.W.2d 95, 1991 N.D. LEXIS 48 (N.D. 1991).

Mortgagee’s Options on Default.

Under these statutes a mortgagee or vendor has three options upon default: (1) foreclose without asking for a deficiency judgment, (2) foreclose, asking for a deficiency judgment in a separate action after the sale of the property, and obtain a judgment for only the difference between the mortgage debt plus costs and the fair value determined by a jury against both mortgagors and nonmortgagors personally liable on the note, or (3) sue on the note without foreclosure but with recovery limited to the difference between the amount due on the note plus costs and the fair value of the property determined by a jury. Brunsoman v. Scarlett, 465 N.W.2d 162, 1991 N.D. LEXIS 3 (N.D. 1991).

Parties Not Joined.
—Liability.

Where parties executed joint and several notes and were not joined in suit to foreclose mortgage, they were not relieved from possible suit for debt due on the notes. Liberty Nat'l Bank v. Daly, 96 N.W.2d 897, 1959 N.D. LEXIS 86 (N.D. 1959).

Partners’ Guaranties of Partnership’s Mortgage Debt.

When general partners personally guaranty a general partnership mortgage debt, the anti-deficiency statutes are applicable, and the procedures for deficiency judgments outlined in First State Bank v. Ihringer, 217 N.W.2d 857 (1974), must be satisfied; however, because of contractual expectations, this decision would be applied prospectively. First Interstate Bank v. Larson, 475 N.W.2d 538 (N.D. 1991), overruling Mandan Sec. Bank v. Heinsohn, 320 N.W.2d 494 (N.D. 1982), overruled on other grounds, First Interstate Bank v. Larson, 475 N.W.2d 538 (N.D. 1991), decided prior to the amendment to N.D.C.C. §§ 22-01-12 and 45-06-07, by Session Laws 1993, Ch. 246.

Predefault Waiver of Protection.

A predefault contractual waiver of the protections of the anti-deficiency statutes is ineffective. Borsheim v. Owan, 467 N.W.2d 95, 1991 N.D. LEXIS 48 (N.D. 1991).

Promissory Note.

When a promissory note is executed in conjunction with the taking of a mortgage, the provisions of the State’s anti-deficiency statutes apply. Gust v. Peoples & Enderlin State Bank, 447 N.W.2d 914, 1989 N.D. LEXIS 209 (N.D. 1989).

Bank’s argument that the anti-deficiency judgment statutes were inapplicable, and that it was free to pursue its action on promissory note because its collateral real estate mortgage had lapsed under the terms of N.D.C.C. § 35-03-17, was without merit. Gust v. Peoples & Enderlin State Bank, 447 N.W.2d 914, 1989 N.D. LEXIS 209 (N.D. 1989).

Considering the strong public policy against deficiency judgments and the view that the anti-deficiency judgment statutes are debtor-protection legislation to be construed “strictly in favor of mortgagors,” a debtor’s contractual waiver of procedural rights under these statutes must be clear, unequivocal, and unambiguous. The waiver cannot arise by implication and the mortgagee or vendor bears the risk of any ambiguity in the agreement. Brunsoman v. Scarlett, 465 N.W.2d 162, 1991 N.D. LEXIS 3 (N.D. 1991).

Recovery Against Nonmortgagor Debtor.

Mortgagee may sue a nonmortgagor debtor who is personally liable on note without first foreclosing mortgage but recovery is limited to the difference between amount due on note, plus costs, and fair value of property. First State Bank v. Ihringer, 217 N.W.2d 857, 1974 N.D. LEXIS 231 (N.D. 1974).

Remedies Available.

Remedies of mortgagee or vendor after default are to: (1) foreclose without asking for deficiency judgment; (2) foreclose, asking for deficiency judgment in separate action after sale of the property, and obtain a judgment for only the difference between the mortgage debt plus costs and the fair value determined by a jury against both mortgagors and nonmortgagors personally liable on note; or (3) sue on note without foreclosure but with recovery limited to difference between amount due on note plus costs and fair value of property determined by jury. First State Bank v. Ihringer, 217 N.W.2d 857, 1974 N.D. LEXIS 231 (N.D. 1974).

Tax Sale.

Mortgagee which lost its right to and interest in the property by failing to redeem from tax sale was not entitled to pursue a foreclosure action, nor to sue the mortgagors directly on the debt evidenced by the promissory note. H & F Hogs v. Huwe, 368 N.W.2d 553, 1985 N.D. LEXIS 326 (N.D. 1985).

Waiver of Rights by Debtor.

The rights and defenses granted debtors by the anti-deficiency judgment law would be largely illusory if a prospective creditor could compel a prospective debtor to waive them at the time the mortgage is executed. Because of the public policy against deficiency judgments, the procedural rights granted mortgagors and vendees under the anti-deficiency judgment law cannot be contractually waived in advance of default. Brunsoman v. Scarlett, 465 N.W.2d 162, 1991 N.D. LEXIS 3 (N.D. 1991).

A mortgagor or vendee who, after default, determines that his or her position in a controversy can be improved by waiving certain procedural rights and benefits granted by the anti-deficiency judgment law should not be precluded from contractually waiving those rights. In recognition of public policy which encourages settlements, contractual post-default waivers of a debtor’s procedural rights under the anti-deficiency judgment law do not violate public policy. Brunsoman v. Scarlett, 465 N.W.2d 162, 1991 N.D. LEXIS 3 (N.D. 1991).

Promisor was not discharged from his obligations by the promisees’ waiver of the right to foreclose the third mortgage without his consent because the promisor’s consent was not required, no evidence established that the promisees knew of the alleged accommodation, and the promisor signed the promissory note as a maker. Zavadil v. Rud, 2014 ND 38, 842 N.W.2d 902, 2014 N.D. LEXIS 40 (N.D. 2014).

DECISIONS UNDER PRIOR LAW

Deficiency After Sale.

Mortgagee who foreclosed under C.L. 1913, § 8100, as amended by S.L. 1933, ch. 155, was relegated to an action at law to recover any deficiency remaining after a sale of the mortgaged property and the application of the proceeds on the mortgage debt. Burrows v. Paulson, 64 N.D. 557, 254 N.W. 471 (1934), decided prior to the amendment to this chapter by Session Laws 1937, ch. 159; and Session Laws 1951, ch. 217.

32-19-08. Sales made by whom and where — Notice.

A sale of mortgaged premises under a judgment of foreclosure must be made in the county where the premises or some part of the premises are situated. The sale must be made by the sheriff of that county, the sheriff’s deputy, or by some person appointed by the court for that purpose, upon the notice and in the manner prescribed by law for the sale of real property upon execution.

Source:

C. Civ. P. 1877, § 622; R.C. 1895, § 5871; R.C. 1899, § 5871; R.C. 1905, § 7482; C.L. 1913, § 8105; R.C. 1943, § 32-1908; S.L. 1983, ch. 376, § 1.; 2005, ch. 302, § 10.

Cross-References.

Execution sales of realty, see N.D.C.C. §§ 28-23-04, 28-23-05, 28-23-07.

Notice of foreclosure proceedings, see N.D.C.C. § 32-19-20.

Validation of foreclosure sale without notice of intention, see N.D.C.C. § 1-05-07.

Notes to Decisions

Defective Affidavits.

If the affidavits of sale are defective, amended affidavits may be filed according to the facts, as against the mortgagor, at any time. Ottow v. Friese, 20 N.D. 86, 126 N.W. 503, 1910 N.D. LEXIS 67 (N.D. 1910).

Notice Defective.

Because mortgage company did not provide separate mailed notice to debtor or her counsel regarding the time and place of the sheriff’s sale even though she was actively involved in the foreclosure process, and because mortgage company did not serve her with a copy of the proposed order confirming the sheriff’s sale, the order confirming the sale was vacated. Principal Residential Mortg., Inc. v. Nash, 2000 ND 21, 606 N.W.2d 120, 2000 N.D. LEXIS 29 (N.D. 2000).

Sale by Sheriff.

This section does not permit a sheriff, at a foreclosure sale of real property located in the sheriff’s county, to sell real property located in another county; however, such a sale is not void as a matter of law. Rott v. Connecticut Gen. Life Ins. Co., 478 N.W.2d 570, 1991 N.D. LEXIS 225 (N.D. 1991), cert. denied, 504 U.S. 959, 112 S. Ct. 2313, 119 L. Ed. 2d 233, 1992 U.S. LEXIS 3339 (U.S. 1992).

Sale of Separate Parcels.

If a debt is secured by a mortgage on several parcels of land and the court finds the mortgagee entitled to a sale, the court has no authority to except any part from the decree of sale, though the value of the remainder is greater than the amount of the debt. Baker v. Marsh, 1 N.D. 20, 44 N.W. 662, 1890 N.D. LEXIS 3 (N.D. 1890).

In a foreclosure action the court will determine whether there ought not to be a sale of the whole security in one body, and the application of the proceeds thereof to the extinguishment of the entire debt then not due as well as that which is due. Cosgrave v. McAvay, 24 N.D. 343, 139 N.W. 693, 1913 N.D. LEXIS 3 (N.D. 1913).

Where parcels of land could have been sold separately to the advantage of the mortgagor, it was error to sell them in one parcel, and the sale could be set aside. Figenskau v. Wiege, 56 N.D. 768, 219 N.W. 471, 1928 N.D. LEXIS 197 (N.D. 1928).

Sheriff As Agent.

A sale under a decree of foreclosure is, in contemplation of law, the act of the court, and the sheriff who conducts it is the mere agent of the court in executing its will. First Nat'l Bank v. Paulson, 69 N.D. 512, 288 N.W. 465, 1939 N.D. LEXIS 180 (N.D. 1939).

Collateral References.

Mortgages 501, 507, 508, 510, 514, 515.

55 Am. Jur. 2d, Mortgages, §§ 718-725.

59 C.J.S. Mortgages, §§ 724, 725, 728-732.

Public sale, what constitutes, 4 A.L.R.2d 575.

Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended, as affecting foreclosure of mortgages and trust deeds, 40 A.L.R.2d 1262, 1279.

Foreclosure sale of mortgaged real estate as a whole or in parcels, 61 A.L.R.2d 505.

32-19-09. Certificate of sale — Deed and effect.

At the sheriff’s sale, the person making the sale must give to the purchaser a certificate of sale as provided by section 28-23-11, and at the expiration of the time for the redemption, if not redeemed, the person making the sale, or the successor in office, must give the purchaser, the purchaser’s heirs, or assigns, or to any person who has acquired the title of the purchaser by redemption or otherwise, a deed. The deed vests in the grantee all the right, title, and interest of the mortgagor in and to the property sold, at the time the mortgage was executed or subsequently acquired by the mortgagor and is a bar to all claim, right, or equity of redemption in or to the property by the parties to the action, their heirs and personal representatives, and also against all persons claiming under them, or any of them, subsequent to the commencement of the action.

Source:

C. Civ. P. 1877, § 623; R.C. 1895, § 5872; R.C. 1899, § 5872; R.C. 1905, § 7483; C.L. 1913, § 8106; R.C. 1943, § 32-1909; 2005, ch. 302, § 11.

Cross-References.

Sale of real estate made under foreclosure validated though sheriff’s certificate of sale not filed within sixty days, see N.D.C.C. § 1-05-01.

Notes to Decisions

Complete Foreclosure.

A foreclosure sale under a power which conveys the title of a mortgagor is, in a legal sense, the complete foreclosure proceeding, beginning with the act of sale and terminating with the execution of the deed after the expiration of the period allowed for redemption. North Dakota Horse & Cattle Co. v. Serumgard, 17 N.D. 466, 117 N.W. 453, 1908 N.D. LEXIS 71 (N.D. 1908).

Mortgagee’s Rights.

Growing crops are a part of realty and, as between the mortgagor and mortgagee, the title to growing crops vests in the mortgagee at the expiration of the period of redemption. Tanous v. Tracy, 55 N.D. 100, 212 N.W. 521, 1927 N.D. LEXIS 10 (N.D. 1927).

A mortgagor’s right in land sold on foreclosure of mortgage vests in a mortgagee on execution of a statutory deed, at the expiration of the period of redemption. Tanous v. Tracy, 55 N.D. 100, 212 N.W. 521, 1927 N.D. LEXIS 10 (N.D. 1927).

Purchaser’s Rights.

Purchaser at foreclosure sale has no right to title, possession, or rents before receiving the sheriff’s deed. First Nat'l Bank v. Bovey, Shute & Jackson, 49 N.D. 450, 191 N.W. 765, 1922 N.D. LEXIS 77 (N.D. 1922).

Where sheriff’s deed is executed on a fraction of the mortgaged premises, the lien on such premises ceases, and the holders of the remainder are cotenants with person claiming under the grantee of the sheriff’s deed. STEVAHN v. MEIDINGER, 79 N.D. 323, 57 N.W.2d 1, 1952 N.D. LEXIS 126 (N.D. 1952).

Recitals in Deed.

Recitals in sheriff’s deeds do not prima facie establish evidence to the effect that one grantee has succeeded to the interests of another grantee. Hannah v. Chase, 4 N.D. 351, 61 N.W. 18, 1894 N.D. LEXIS 43 (N.D. 1894).

Waiver of Objection.

Objection to foreclosure sale made after sale had been reported to and confirmed by the court and a sheriff’s certificate had been issued was too late when sole ground was noncompliance with statutory requirements regarding publication of notice. Winslow v. Klundt, 51 N.D. 808, 201 N.W. 169, 1924 N.D. LEXIS 85 (N.D. 1924).

Collateral References.

Mortgages 527.

55 Am. Jur. 2d, Mortgages, § 758.

Collateral security, effect of purchase of property by pledgee on foreclosure of mortgage held as, 37 A.L.R.2d 1381, 1397.

Junior mortgagee: right of junior mortgagee, whose mortgage covers only a part of the land subject to first mortgage, to redeem pro tanto where he was not bound by foreclosure sale, 46 A.L.R.3d 1362.

32-19-10. Application of proceeds.

The proceeds of every foreclosure sale must be applied to the discharge of the debt adjudged by the court to be due and of the costs, and if there is any surplus, it must be brought into court subject to the order of the court. If the surplus is less than one thousand dollars and an application to receive the surplus is not filed with the court within sixty days after deposit, the court shall order the funds forfeited to the general fund of the county.

Source:

C. Civ. P. 1877, § 624; R.C. 1895, § 5873; R.C. 1899, § 5873; R.C. 1905, § 7484; C.L. 1913, § 8107; R.C. 1943, § 32-1910; 2005, ch. 302, § 12.

Derivation:

Harston’s (Cal.) Practice, 727.

Notes to Decisions

Amount Due.

Notice by mortgagor of amount due in foreclosure does not set a limit on the trial court in its findings of the true amount owed to the bank; it is merely a prerequisite to the foreclosure to the mortgage to advise the mortgagor of the contemplated foreclosure to the end that he may make payment or cure the default and thus save the costs and trouble incident to foreclosure. First W. Bank & Trust v. Wickman, 527 N.W.2d 278, 1995 N.D. LEXIS 10 (N.D. 1995).

Attorney Fees.

A judgment creditor is not entitled to collect attorney fees under a provision in the mortgage as part of the amount due or as costs under this section. Principal Residential Mortg., Inc. v. Nash, 2000 ND 21, 606 N.W.2d 120, 2000 N.D. LEXIS 29 (N.D. 2000).

Construction with Other Laws.

A federal court’s determination of appropriate costs and fees under federal law in a bankruptcy action is not controlling on the issue of proper costs under state law in a foreclosure action after the bankruptcy action has been dismissed, and the principles of res judicata and collateral estoppel do not apply under these circumstances. Principal Residential Mortg., Inc. v. Nash, 2000 ND 21, 606 N.W.2d 120, 2000 N.D. LEXIS 29 (N.D. 2000).

Mandatory Nature of Section.

This section is mandatory, places surplus funds in custody of court, and contemplates special proceeding after foreclosure sale is completed to dispose of those funds in accordance with respective rights of claimants; judgment creditor which had no lien upon land of debtor had no lien upon surplus after foreclosure sale, and it was thus error to direct distribution of surplus funds to judgment creditor as judgment lien holder. Kulm Credit Union v. Harter, 157 N.W.2d 700, 1968 N.D. LEXIS 111 (N.D. 1968).

Surplus.

This section allows the judgment creditor to recover from the sale proceeds only the amount of the debt and the costs of the action, including the costs of the judicial sale, and if the bid exceeds those amounts, there is a surplus which must be disposed of under the terms of this section. Principal Residential Mortg., Inc. v. Nash, 2000 ND 21, 606 N.W.2d 120, 2000 N.D. LEXIS 29 (N.D. 2000).

Unmatured Debt.

The court may order a sale to collect a debt in part not due, and then to rebate or credit upon the debt the interest that would accrue between the date of judgment and the maturity of the debt. Cosgrave v. McAvay, 24 N.D. 343, 139 N.W. 693, 1913 N.D. LEXIS 3 (N.D. 1913).

Collateral References.

Mortgages 563-569.

55 Am. Jur. 2d, Mortgages, §§ 778-792.

32-19-11. When surplus invested.

If the surplus is one thousand dollars or more and is not applied for within ninety days, the court may direct the same to be deposited at interest for benefit of the defendant, the defendant’s representatives, or assigns, subject to the order of the court.

Source:

C. Civ. P. 1877, § 625; R.C. 1895, § 5874; R.C. 1899, § 5874; R.C. 1905, § 7485; C.L. 1913, § 8108; R.C. 1943, § 32-1911; 2005, ch. 302, § 13.

Derivation:

Harston’s (Cal.) Practice, 727.

32-19-12. Complaint dismissed on payment of installments due. [Repealed]

Repealed by S.L. 2005, ch. 302, § 30.

32-19-13. When payment stays proceedings. [Repealed]

Repealed by S.L. 2005, ch. 302 § 30.

32-19-14. Referee to view premises. [Repealed]

Repealed by S.L. 2005, ch. 302, § 30.

32-19-15. Successive judgments and sales. [Repealed]

Repealed by S.L. 2005, ch. 302, § 30.

32-19-16. Sale of whole on first default. [Repealed]

Repealed by S.L. 2005, ch. 302, § 30.

32-19-17. Rebate on undue part. [Repealed]

Repealed by S.L. 2005, ch. 302, § 30.

32-19-18. Redemption.

A party in a foreclosure action or the successor of a party may redeem from the foreclosure sale within sixty days after the sale, except for abandoned property as provided in section 32-19-19 and agricultural land. Agricultural land may be redeemed within three hundred sixty-five days after the filing of the summons and complaint in the office of the clerk of district court or the time of the first publication of the notice by advertisement. The final date for redemption of agricultural land may not be earlier than sixty days after the sheriff’s sale. The owner of the property has a paramount right to redeem upon paying the amount bid at the sheriff’s sale plus interest on that amount at the same rate as the obligation secured by the mortgage. Persons holding subordinate liens on the property may redeem in the order of priority as determined by the order of attachment to the property. This redemption has the effect of a redemption as of the date of deposit, subject to the subsequent payment of any additional amount, if any, determined to be due as of that date.

Source:

C. Civ. P. 1877, § 633; R.C. 1895, § 5881; R.C. 1899, § 5881; R.C. 1905, § 7492; C.L. 1913, § 8115; R.C. 1943, § 32-1918; 2005, ch. 302, § 14; 2019, ch. 279, § 2, eff August 1, 2019.

Cross-References.

Redemption by lien holders, see N.D.C.C. §§ 35-01-16 to 35-01-18.

Notes to Decisions

Application of Statute.

North Dakota redemption statute does not apply to the foreclosure of a loan guaranteed pursuant to the Federal Nonnuclear Research and Development Act of 1974. United States v. Great Plains Gasification Associates, 813 F.2d 193, 1987 U.S. App. LEXIS 3162 (8th Cir. N.D.), cert. denied, 484 U.S. 924, 108 S. Ct. 285, 98 L. Ed. 2d 245, 1987 U.S. LEXIS 4550 (U.S. 1987).

Detrimental Reliance.

If redemptioner relies to his detriment on a promise made by purchaser to allow him to exercise his right of redemption after the year has expired, the purchaser is estopped to deny right to redeem. Kenmare Hard Coal, Brick, & Tile Co. v. Riley, 20 N.D. 182, 126 N.W. 241, 1910 N.D. LEXIS 62 (N.D. 1910).

Extension of Period.

Evidence of an agreement to extend the period of redemption must be clear and convincing, and burden of proof is upon redemptioner to show promise to extend by purchaser and good faith reliance thereon. Kenmare Hard Coal, Brick, & Tile Co. v. Riley, 20 N.D. 182, 126 N.W. 241, 1910 N.D. LEXIS 62 (N.D. 1910).

The only two bases for possible extension of period of redemption are agreement to that effect and fraud and deceit which prevented redemption within statutory period. Krauth v. Jungers, 61 N.D. 374, 237 N.W. 778, 1931 N.D. LEXIS 285 (N.D. 1931).

Fractional Interest.

Where redemption period expired as to all heirs except one, who was protected by Soldiers’ and Sailors’ Civil Relief Act, redemption of his interest would be computed on fractional amount of property on which redemption period had not yet expired. STEVAHN v. MEIDINGER, 79 N.D. 323, 57 N.W.2d 1, 1952 N.D. LEXIS 126 (N.D. 1952).

Oral Agreement.

An oral agreement to extend the period of redemption from a real estate mortgage foreclosure sale beyond the time allowed by statute must be established by clear and convincing evidence. VAN CAMP v. PETERSON, 69 N.D. 341, 286 N.W. 903, 1939 N.D. LEXIS 158 (N.D. 1939).

Second Mortgagee.

Where first mortgagee foreclosed its mortgage, second mortgagee’s right to foreclose its junior mortgage on the same property was extinguished, and second mortgagee was left with a statutory right of redemption; and when the redemption period expired, second mortgagee lost all rights and interest in the property through its mortgage. National Credit Union Share Ins. Fund v. University Developers, 335 N.W.2d 559, 1983 N.D. LEXIS 337 (N.D. 1983).

Collateral References.

Mortgages 591-624 (4).

55 Am. Jur. 2d, Mortgages, §§ 876-916.

Adverse possession: mortgagee’s possession before foreclosure as barring right of redemption, 7 A.L.R.2d 1131.

Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended, as extending period of redemption from sale under mortgage or trust deed, 40 A.L.R.2d 1262, 1279.

Redemption rights of mortgagor making timely tender but of inadequate amount because of officer’s mistake, 52 A.L.R.2d 1327.

Homestead right in equity of redemption, 74 A.L.R.2d 1355.

Tender: necessity and sufficiency of tender by one seeking to redeem property from mortgage foreclosure, 80 A.L.R.2d 1317.

32-19-18.1. Payment to redeem.

A person redeeming from a sheriff’s sale may pay the required amount either to the holder of the certificate or to the sheriff. If there is a dispute as to the amount required to redeem, the person attempting to redeem shall deposit with the sheriff the amount the person calculates to be due and a written description of the basis for the calculation. The deposit has the effect of a redemption as of the date of deposit, subject to the subsequent payment of any additional amount determined to be due as of that date.

Source:

S.L. 2007, ch. 294, § 1.

32-19-19. Injury to property restrained — Abandoned real property.

The court, by injunction, on good cause shown, may restrain the party in possession from doing any act to the injury of real property during the existence of the lien or foreclosure of a mortgage on the real property and until the expiration of the time allowed for redemption. If at the time of the commencement of the foreclosure action and at any time before the sheriff’s sale the mortgagee, or after the sheriff’s sale the holder of the sheriff’s certificate of sale, reasonably believes that the property is abandoned, the mortgagee or holder of the sheriff’s certificate may allege abandonment in the complaint or petition the court to determine abandonment. If by petition, a notice of hearing must be sent by mail to the last-known address of the mortgagor or the party entitled to possession of the real property at least ten days prior to the date of the hearing to determine abandonment. Service by mail is complete upon mailing. If the court determines the real property is abandoned, the court may eliminate the redemption period in the foreclosure judgment or, upon petition, grant the mortgagee or holder of the sheriff’s certificate immediate possession and use of the property and all benefit and rents from the property until expiration of the redemption period. The court may consider remedies to prevent waste in a foreclosure action or upon a petition for abandonment. The provisions of this section concerning abandoned real property do not apply to agricultural property as defined by section 57-02-01.

Source:

C. Civ. P. 1877, § 634; R.C. 1895, § 5882; R.C. 1899, § 5882; R.C. 1905, § 7493; C.L. 1913, § 8116; R.C. 1943, § 32-1919; S.L. 1989, ch. 395, § 3; 2019, ch. 279, § 3, eff August 1, 2019.

Cross-References.

Debtor entitled to rents during redemption period, see N.D.C.C. § 28-24-11.

Notes to Decisions

Appointment of Receiver.

Court of equity has no power to appoint receiver of rents and profits or of the crops during the period of redemption, at the instance of the mortgagor, but the latter must resort to an injunction. Farm Mortgage Loan Co. v. Pettet, 51 N.D. 491, 200 N.W. 497, 1924 N.D. LEXIS 55 (N.D. 1924).

Collateral References.

Contempt of court: mortgagor’s interference with property subject to order of foreclosure and sale as contempt of court, 54 A.L.R.3d 1242.

Waste justifying appointment of receiver if mortgaged property, what constitutes, 55 A.L.R.3d 1041.

32-19-20. Notice before foreclosure.

At least thirty days and not more than ninety days before the commencement of any action or proceeding for the foreclosure of a mortgage on real estate, a written notice shall be served on the title owner of record of the real estate.

Source:

S.L. 1919, ch. 131, § 1; 1921, ch. 66, § 1; 1925, ch. 142, § 1; 1925 Supp., § 8099a; S.L. 1927, ch. 143, § 1; 1933, ch. 156, § 1; R.C. 1943, § 32-1920; S.L. 2001, ch. 120, § 1; 2005, ch. 302, § 15.

Note.

Session Laws 1989, chapter 394, effective April 11, 1989, as amended by chapter 360, S.L. 1991, effective July 3, 1991, provides to farmers, effective through June 30, 1993, and after that date ineffective, the right to redeem homesteads separately from other property; amends and reenacts section 28-23-07, relating to waivers of right to designate lots at execution sale; and repeals chapter 194 of the 1987 Session Laws, relating to redemption of separate known lots or parcels of property.

Section 1 of chapter 394, S.L. 1989, is a declaration by the Legislative Assembly which provides that it is in the best interest of the state to protect farm families from the dislocation caused by the financial crisis in agriculture, and that the act is enacted in accordance with N.D. Const., Art. XI, § 22, which requires the legislative assembly to adopt wholesome laws protecting homesteads.

Section 2 of chapter 394, S.L. 1989, amends section 28-23-07.

Section 3 of chapter 394, S.L. 1989, provides:

Separate redemption of homestead — Notice. In any proceeding to foreclose any mortgage upon agricultural property as defined in subsection 1 of section 57-02-01, including a proceeding under chapter 15-03, 15-08, 32-19, 32-19.1, or 35-22, the executing creditor shall notify the debtor that the debtor may redeem the property described in section 47-18-01 separately from the remaining property. The notice required in sections 32-19-20 and 35-22-03 must contain a statement substantially similar to the following:

WARNING: This creditor is seeking foreclosure on agricultural property that may contain your homestead. Under North Dakota law, you have the right to redeem the lot or parcel that contains your homestead separately from the remaining property that is being foreclosed upon, by paying the purchase price, plus interest and costs, within the redemption period, which is generally one year from the date of the sale. The purchase price is the price bid at the foreclosure sale for that lot or parcel. You should consult with an attorney so you do not lose these valuable rights. You must provide the sheriff and the register of deeds [now recorder] with an accurate legal description of the homestead you wish to redeem either at the sale or at least ten business days [but see section 4 printed below] before the date of the scheduled sheriff’s sale. If the creditor is foreclosed by action, an additional copy of the notice must be served with a summons and complaint. If the creditor is foreclosing by advertisement, an additional copy of the notice must be served no later than forty-five days before the date of the scheduled sale. The notice must be served in the same manner as service of a summons and complaint.”

Section 4 of chapter 394, S.L. 1989, as amended by section 1 of chapter 360, S.L. 1991, provides:

Designation of homesteads to be separately redeemed. The debtor may designate a reasonably compact contiguous area including the debtor’s dwelling but not to exceed one hundred sixty acres [64.75 hectares] to be sold separately at the foreclosure sale by serving a copy of the legal description of the property claimed under this section on the sheriff, the register of deeds [now recorder], and the parties to the foreclosure proceeding at least ten business days before the date of the scheduled sheriff’s sale.”

Section 5 of chapter 394, S.L. 1989, provides a procedure by which a party to foreclosure proceedings may contest the designation of property to be separately redeemed.

Section 6 of chapter 394, S.L. 1989, provides that any sheriff who receives a designation of the legal description of property under section 4 of the act shall offer and sell that parcel separately from the remaining property, unless otherwise ordered by the court under section 5 of the act.

Section 7 of chapter 394, S.L. 1989, provides a procedure for the redemption of homestead designated by the debtor after foreclosure.

Section 8 of chapter 394, S.L. 1989, provides that no redemptioner or purchaser may subsequently redeem or purchase the property designated by the debtor under section 4 of the act if the debtor exercises the right to redeem or purchase it.

Section 9 of chapter 394, S.L. 1989, describes the right of certain debtors to purchase homesteads acquired by lenders.

Section 10 of chapter 394, S.L. 1989, repeals chapter 194, S.L. 1987.

Section 11 of chapter 394, S.L. 1989, as amended by section 2 of chapter 360, S.L. 1991, provides that the act is effective through June 30, 1993, and after that date is ineffective.

Section 12 of chapter 394, S.L. 1989, declares the act to be an emergency measure.

Cross-References.

Notice of sale, see N.D.C.C. § 32-19-08.

Notes to Decisions

Acceleration Clause.

The statute does not negative the ordinary legal effect of the acceleration clause in a note and mortgage. State Bank v. First Nat’l Bank, 49 N.D. 611, 192 N.W. 967 (1923), decided prior to the 1921 amendment to this section.

If a mortgagor is in default for failure to pay two annual interest notes secured by a real estate mortgage, and if notice of the exercise of an option to declare the whole amount due has been served, a subsequent tender of the interest during the thirty-day notice period does not cure the default nor reinstate the mortgage. State Bank v. First Nat’l Bank, 49 N.D. 611, 192 N.W. 967 (1923), decided prior to the 1921 amendment to this section.

Affidavit of Service.

Filing of affidavit of proof of service of notice of intention to foreclose is not a condition precedent to the commencement of the action and failure to file does not operate to divest court of jurisdiction. Nonweiler v. Rettinger, 65 N.D. 436, 259 N.W. 500, 1935 N.D. LEXIS 126 (N.D. 1935).

Agricultural Property.

The requirement that the notice before foreclosure under this section “must” contain a statement advising the mortgagor of the right to have the property sold in parcels, connotes an imperative or mandatory requirement; therefore, in any proceeding to foreclose a mortgage upon agricultural property the notice before foreclosure is legally insufficient unless it includes the required language. Federal Land Bank v. Waltz, 423 N.W.2d 799, 1988 N.D. LEXIS 132 (N.D. 1988).

Amount Due.

Notice by mortgagor of amount due in foreclosure does not set a limit on the trial court in its findings of the true amount owed to the bank; it is merely a prerequisite to the foreclosure to the mortgage to advise the mortgagor of the contemplated foreclosure to the end that he may make payment or cure the default and thus save the costs and trouble incident to foreclosure. First W. Bank & Trust v. Wickman, 527 N.W.2d 278, 1995 N.D. LEXIS 10 (N.D. 1995).

Failure to Give Notice.

Failure to give notice of intention to foreclose does not affect in any manner the debt secured by the mortgage, nor does it give rise to a counterclaim or valid defense against collection of amount claimed to be due. Larson v. Jacobson, 54 N.D. 69, 208 N.W. 833, 1926 N.D. LEXIS 114 (N.D. 1926).

Where a bank voluntarily moved to dismiss a foreclosure proceeding because it defectively served the notice before foreclosure less than 30 days before commencement of the proceeding, there was no merit to mortgagors’ argument that the bank could not serve a second notice before foreclosure before the dismissal of the first proceeding. United Valley Bank v. Lamb, 2003 ND 149, 669 N.W.2d 117, 2003 N.D. LEXIS 160 (N.D. 2003).

Jurisdiction.

Strict compliance with the notice before foreclosure provisions is not a jurisdictional prerequisite to the district court’s exercise of subject matter jurisdiction over the foreclosure action, and therefore an inaccurate description of the property and failure to file the notice with the complaint did not render the judgment void as a matter of law. Northwestern Nat'l Life Ins. Co. v. Delzer, 425 N.W.2d 365, 1988 N.D. LEXIS 145 (N.D. 1988).

Method of Service.

In a foreclosure action, where record owner was served with notice by service by publication and, 84 days later, record owner was notified by service by publication of amended summons, action was properly commenced within the time limits of this section. Farm Credit Bank v. Obrigewitch, 462 N.W.2d 113, 1990 N.D. LEXIS 212 (N.D. 1990).

Proof of Service.

The trial court did not abuse its discretion in accepting evidence of proof of service of notice before foreclosure. Farm Credit Bank v. Huether, 454 N.W.2d 710, 1990 N.D. LEXIS 89 (N.D. 1990).

Purpose of Notice.

The purpose of a notice before foreclosure is to afford the record title owner an opportunity to be informed of the proposed foreclosure so that he can pay the amount due and avoid the cost, expense, and annoyance of foreclosure. State Bank v. Lindberg, 436 N.W.2d 12, 1989 N.D. LEXIS 26 (N.D. 1989).

Real Estate Contracts.

This statute has no application to the cancellation or foreclosure of contracts for the sale of real estate. Schaff v. Kennelly, 61 N.W.2d 538, 1953 N.D. LEXIS 86 (N.D. 1953).

Retroactivity of Statute.

Law requiring notice of intention to foreclose does not apply to mortgages executed before its passage. Patterson Land Co. v. Merchants' Bank, 55 N.D. 90, 212 N.W. 512, 1927 N.D. LEXIS 8 (N.D. 1927); Lutz v. Coffey, 61 N.D. 105, 237 N.W. 783, 1931 N.D. LEXIS 249 (N.D. 1931).

Rights of Spouse.

In a mortgage foreclosure action, the husband of a property owner did not acquire any interest in the property by signing the mortgage which was given as security for a loan, nor by the fact that the foreclosing institution sent him the notice of intent to foreclose, which was a gratuitous act, not required by statute. State v. Moen, 441 N.W.2d 643, 1989 N.D. LEXIS 113 (N.D. 1989).

Collateral References.

Mortgages 440.

59 C.J.S. Mortgages, § 633.

32-19-21. Contents of notice.

The notice before foreclosure shall contain:

  1. A description of the real estate.
  2. The date and amount of the mortgage.
  3. The amount due to bring the installments of principal and interest current as of a date specified, and the amount advanced by the mortgagee for taxes, insurance, and maintenance, separately itemized.
  4. A statement that if the amount due is not paid within thirty days from the date of the mailing or service of the notice proceedings will be commenced to foreclose the mortgage.

Source:

S.L. 1919, ch. 131, § 1; 1921, ch. 66, § 1; 1925, ch. 142, § 1; 1925 Supp., § 8099a; S.L. 1927, ch. 143, § 1; 1933, ch. 156, § 1; R.C. 1943, § 32-1921; 2005, ch. 302, § 16.

Notes to Decisions

Acceleration of Debt in Notice.

If a creditor could accelerate the entire debt in the notice before foreclosure and make payment of that accelerated amount a condition for reinstatement of the mortgage, the provisions of reinstatement of the mortgage in this section would be surplusage because the mortgage would have been satisfied upon payment of the entire accelerated debt. That result is contrary to the rule of statutory construction that, whenever possible, meaning and effect are given to every provision of a statute. State Bank v. Lindberg, 436 N.W.2d 12, 1989 N.D. LEXIS 26 (N.D. 1989).

Accuracy of Figures in Notice.

Mortgagor had the burden of showing that the figures contained in the notice before foreclosure were incorrect. Norwest Bank N.D., N.A. v. Frederick, 452 N.W.2d 316, 1990 N.D. LEXIS 55 (N.D. 1990).

Agricultural Property.

The requirement that notice before foreclosure under N.D.C.C. § 32-19-20 “must” contain a statement advising the mortgagor of the right to have the property sold in parcels, connotes an imperative or mandatory requirement; therefore, in any proceeding to foreclose a mortgage upon agricultural property the notice before foreclosure is legally insufficient unless it includes the required language. Federal Land Bank v. Waltz, 423 N.W.2d 799, 1988 N.D. LEXIS 132 (N.D. 1988).

Monthly Escrow Charge Statement.

A statement of delinquent monthly escrow charges does not necessarily imply that the mortgagee has actually paid taxes through the use of its own funds. Resolution Trust Corp. v. Gosbee, 536 N.W.2d 698, 1995 N.D. LEXIS 140 (N.D. 1995), cert. denied, 516 U.S. 1075, 116 S. Ct. 779, 133 L. Ed. 2d 730, 1996 U.S. LEXIS 520 (U.S. 1996).

Payment of Amount Due.

The language of this section and N.D.C.C. § 32-19-28, when read together, authorizes reinstatement of the mortgage by paying the amount actually in arrearage (i.e., the “amount due”) under this section within thirty days after service of the notice before foreclosure. If the title owner pays the amount actually in arrearage, he will have performed the conditions or complied with the provisions upon which default in the mortgage shall have occurred within the meaning of N.D.C.C. § 32-19-28 and the mortgage shall be reinstated. State Bank v. Lindberg, 436 N.W.2d 12, 1989 N.D. LEXIS 26 (N.D. 1989).

Purpose of Notice.

The purpose of a notice before foreclosure is to afford the record title owner an opportunity to be informed of the proposed foreclosure so that he can pay the amount due and avoid the cost, expense, and annoyance of foreclosure. State Bank v. Lindberg, 436 N.W.2d 12, 1989 N.D. LEXIS 26 (N.D. 1989).

Statement of Taxes.

This section clearly requires a statement of taxes paid by the mortgagee only when those taxes have been paid by the mortgagee. Norwest Bank N.D., N.A. v. Frederick, 452 N.W.2d 316, 1990 N.D. LEXIS 55 (N.D. 1990).

Unpaid Taxes.

A notice of intention to foreclose reciting that taxes on the mortgaged property have not been paid and stating the amount thereof is not fatally defective if it also recites those things required by statute. Brewer v. Forsberg, 53 N.D. 262, 205 N.W. 686, 1925 N.D. LEXIS 79 (N.D. 1925).

32-19-22. Notice may be served by mail.

The notice before foreclosure may be served by mail, as provided in rule 4 of the North Dakota Rules of Civil Procedure, addressed to the owner of record at the owner’s post-office address in the mortgage or by the records in the chain of title of the recorder of the county where the real estate is situated. If the post-office address is not shown in the mortgage or in the records, the notice may be served as provided in rule 4 of the North Dakota Rules of Civil Procedure, addressed to the owner of record at the post office nearest any part or tract of the real estate.

Source:

S.L. 1919, ch. 131, § 1; 1921, ch. 66, § 1; 1925, ch. 142, § 1; 1925 Supp., § 8099a; S.L. 1927, ch. 143, § 1; 1933, ch. 156, § 1; R.C. 1943, § 32-1922; S.L. 2001, ch. 120, § 1; 2005, ch. 302, § 17; 2007, ch. 294, § 2.

Notes to Decisions

Sufficiency of Notice.

Service of notice of intention to foreclose by registered mail, addressed to the title owner at his post-office address, is legal notice. LUTZ v. COFFEY, 61 N.D. 431, 238 N.W. 29, 1931 N.D. LEXIS 292 (N.D. 1931).

32-19-23. When notice not required.

  1. If the record title to real estate is in the name of a deceased person, notice before foreclosure need not be served unless a personal representative of the estate is appointed in the county in which the real estate is situated. The certificate of the judge or clerk of the district court serving the county in which the real estate is situated stating that a personal representative has not been appointed is sufficient evidence of that fact.
  2. Actual service of the notice before foreclosure is not required if the property is abandoned as provided under section 32-19-23.1, or if service by mail as provided in this chapter has been attempted three times and the attempted service is returned as refused or unclaimed.

Source:

S.L. 1919, ch. 131, § 1; 1921, ch. 66, § 1; 1925, ch. 142, § 1; 1925 Supp., § 8099a; S.L. 1927, ch. 143, § 1; 1933, ch. 156, § 1; R.C. 1943, § 32-1923; S.L. 1991, ch. 326, § 132; 2001, ch. 120, § 1; 2005, ch. 302, § 18; 2019, ch. 279, § 4, eff August 1, 2019.

Notes to Decisions

Party Outside Chain of Title.

The notice of intention to foreclose a mortgage need not be served on one not the record owner, though such party claims title and is residing on the land. Passenger v. Coan, 61 N.D. 569, 238 N.W. 773, 1931 N.D. LEXIS 310 (N.D. 1931).

32-19-23.1. Abandoned property — Prima facie evidence.

  1. An affidavit under this section is prima facie evidence of abandonment if the affidavit is made by:
    1. The sheriff or sheriff’s deputy of the county in which the mortgaged premises is located, or of a building inspector, zoning administrator, housing official, or other municipal or county official having jurisdiction over the mortgaged premises, and the affidavit states the mortgaged premises are not actually occupied; or
    2. The party foreclosing a mortgage, holding a sheriff’s certificate, or an agent or contractor of the party foreclosing the mortgage, and the affidavit states the affiant has changed the locks on the mortgaged premises and a party having a legal possessory right has not requested entrance to the premises for at least ten days.
  2. An affidavit under this section must include at least one of the following facts:
    1. Windows or entrances to the premises are boarded or shuttered, or multiple window panes are broken;
    2. Doors to the premises are destroyed, broken, unhinged, or continuously unlocked;
    3. Gas, electric, or water service to the premises has been terminated;
    4. Rubbish, trash, or debris has accumulated on the mortgaged premises;
    5. Law enforcement has received at least two reports of trespassers, vandalism, or other illegal acts on the premises; or
    6. The premises is deteriorating and either below or in imminent danger of falling below minimum community standards for public safety and sanitation.
  3. This section applies only to mortgaged property that is:
    1. Ten acres or less;
    2. Improved with a residential dwelling that consists of fewer than five units and is not a model home or under construction; and
    3. Not used in agricultural production.

Source:

S.L. 2019, ch. 279, § 5, eff August 1, 2019.

32-19-24. Service of notice on personal representative.

If a personal representative of the estate of the deceased owner has been appointed in the county where the real estate is situated, the notice before foreclosure must be served upon the personal representative. Service may be made by registered mail, as provided in rule 4 of the North Dakota Rules of Civil Procedure, addressed to the personal representative’s post-office address as shown by the records of the district court by which the personal representative was appointed.

Source:

S.L. 1919, ch. 131, § 1; 1921, ch. 66, § 1; 1925, ch. 142, § 1; 1925 Supp., § 8099a; S.L. 1927, ch. 143, § 1; 1933, ch. 156, § 1; R.C. 1943, § 32-1924; S.L. 1991, ch. 326, § 133; 2005, ch. 302, § 19.

32-19-25. Notice may be served personally.

Service of the notice before foreclosure may be made upon the title owner of record or upon the personal representative of the owner’s estate by personal service within or without this state in the manner provided by law for the service of a summons in a civil action.

Source:

S.L. 1919, ch. 131, § 1; 1921, ch. 66, § 1; 1925, ch. 142, § 1; 1925 Supp., § 8099a; S.L. 1927, ch. 143, § 1; 1933, ch. 156, § 1; R.C. 1943, § 32-1925; 2005, ch. 302, § 20.

Notes to Decisions

Proof of Service.

The trial court did not abuse its discretion in accepting evidence of proof of service of notice before foreclosure. Farm Credit Bank v. Huether, 454 N.W.2d 710, 1990 N.D. LEXIS 89 (N.D. 1990).

32-19-26. Actual receipt of notice always sufficient.

In any case, service of the notice before foreclosure is sufficient if it actually was received by the title owner or by the personal representative of the owner’s estate. A United States post-office registry return receipt showing that the envelope containing the notice has been delivered to the record title owner or to the personal representative of the owner’s estate, or to the agent of either, is prima facie evidence that the owner or the owner’s administrator or executor received the same.

Source:

S.L. 1919, ch. 131, § 1; 1921, ch. 66, § 1; 1925, ch. 142, § 1; 1925 Supp., § 8099a; S.L. 1927, ch. 143, § 1; 1933, ch. 156, § 1; R.C. 1943, § 32-1926; 2005, ch. 302, § 21.

32-19-27. Proofs relative to notice — How made and filed.

Proof of service of notice before foreclosure may be made by the return of a sheriff or other officer, or by affidavit of the person making personal service or mailing such notice. Proof of death of the title owner of record may be made by a certified copy of the death certificate or by affidavit of any person having knowledge of the fact. Proof of any other fact necessary to show the notice was properly served, service was attempted and refused or unclaimed, or the property is abandoned may be made by certificate of a proper officer or of an abstracter or by affidavit of any person having knowledge of the facts. Such proofs together with the notice must be filed with the complaint in any action for the foreclosure of a mortgage and must be recorded with the notice and certificate of sale in foreclosures by advertisement.

Source:

S.L. 1919, ch. 131, § 1; 1921, ch. 66, § 1; 1925, ch. 142, § 1; 1925 Supp., § 8099a; S.L. 1927, ch. 143, § 1; 1933, ch. 156, § 1; R.C. 1943, § 32-1927; 2019, ch. 279, § 6, eff August 1, 2019.

Notes to Decisions

Evidence.

The trial court did not abuse its discretion in accepting evidence of proof of service of notice before foreclosure. Farm Credit Bank v. Huether, 454 N.W.2d 710, 1990 N.D. LEXIS 89 (N.D. 1990).

Jurisdiction.

Strict compliance with the notice before foreclosure provisions is not a jurisdictional prerequisite to the district court’s exercise of subject matter jurisdiction over the foreclosure action, and therefore an inaccurate description of the property and failure to file the notice with the complaint did not render the judgment void as a matter of law. Northwestern Nat'l Life Ins. Co. v. Delzer, 425 N.W.2d 365, 1988 N.D. LEXIS 145 (N.D. 1988).

Sufficient Proof.

The filing and recording of a notice of intention to foreclose, and proof of service prior to filing and recording the sheriff’s certificate of sale, are sufficient. Brewer v. Forsberg, 53 N.D. 262, 205 N.W. 686, 1925 N.D. LEXIS 79 (N.D. 1925).

32-19-28. Default may be cured.

If the record title owner or the personal representative of the owner’s estate, within thirty days from the service of notice before foreclosure, performs the conditions or complies with the provisions upon which default in the mortgage occurred, the mortgage must be reinstated and remain in full force and effect the same as though a default had not occurred in the mortgage.

Source:

S.L. 1919, ch. 131, § 1; 1921, ch. 66, § 1; 1925, ch. 142, § 1; 1925 Supp., § 8099a; S.L. 1927, ch. 143, § 1; 1933, ch. 156, § 1; R.C. 1943, § 32-1928; 2005, ch. 302, § 22.

Notes to Decisions

Acceleration in Notice of Foreclosure.

If a creditor could accelerate the entire debt in the notice before foreclosure and make payment of that accelerated amount a condition for reinstatement of the mortgage, the provisions of reinstatement of the mortgage in this section would be surplusage because the mortgage would have been satisfied upon payment of the entire accelerated debt. That result is contrary to the rule of statutory construction that, whenever possible, meaning and effect are given to every provision of a statute. State Bank v. Lindberg, 436 N.W.2d 12, 1989 N.D. LEXIS 26 (N.D. 1989).

Contents of Notice.

Where the notice before foreclosure correctly stated that payment of the delinquent amount alone, rather than the entire debt, if accomplished within 30 days, would cure the default, the notice before foreclosure comported with this section. Norwest Bank N.D., N.A. v. Frederick, 452 N.W.2d 316, 1990 N.D. LEXIS 55 (N.D. 1990).

Purpose of Foreclosure Notice.

The purpose of a notice before foreclosure is to afford the record title owner an opportunity to be informed of the proposed foreclosure so that he can pay the amount due and avoid the cost, expense, and annoyance of foreclosure. State Bank v. Lindberg, 436 N.W.2d 12, 1989 N.D. LEXIS 26 (N.D. 1989).

Reinstatement upon Payment of Arrearages.

The language of N.D.C.C. § 32-19-21 and this section, when read together, authorizes reinstatement of the mortgage by paying the amount actually in arrearage (i.e., the “amount due”) under N.D.C.C. § 32-19-21 within thirty days after service of the notice before foreclosure. If the title owner pays the amount actually in arrearage, he will have performed the conditions or complied with the provisions upon which default in the mortgage shall have occurred within the meaning of this section and the mortgage shall be reinstated. State Bank v. Lindberg, 436 N.W.2d 12, 1989 N.D. LEXIS 26 (N.D. 1989).

District court properly entered a judgment in favor of a lender in its mortgage foreclosure action because, while the lender’s notice before foreclosure showed an amount less than what was owed to satisfy the judgment and the borrower raised the defective notice issue during the pendency of the action after the lender moved to amend its complaint, the defect did not impair the borrower’s right to reinstate the mortgage and was not fatal to the lender’s foreclosure action where, had he paid the amount due under the notice, the mortgage would have been reinstated and the lender would have been required to start the process over to foreclose the mortgage. Heartland State Bank v. Larson, 2019 ND 129, 927 N.W.2d 407, 2019 N.D. LEXIS 131 (N.D. 2019).

DECISIONS UNDER PRIOR LAW

Acceleration Clause.

Tender of payments for which mortgagor is in default will not cure default where mortgagee has elected to accelerate the due date as per the mortgage. State Bank v. First Nat’l Bank, 49 N.D. 611, 192 N.W. 967 (1923) decided prior to the 1921 amendment to this section; Brewer v. Forsberg, 53 N.D. 262, 205 N.W. 686, 1925 N.D. LEXIS 79 (N.D. 1925).

32-19-29. Summons — How served.

The summons in a foreclosure action must be served in the same manner as in any civil action.

Source:

S.L. 1935, ch. 241, § 1; R.C. 1943, § 32-1929; 2005, ch. 302, § 23.

Notes to Decisions

Publication.

Any defendant not in actual possession of the property may be served by publication without first attempting personal service. First Bank v. Neset, 1997 ND 4, 559 N.W.2d 211, 1997 N.D. LEXIS 10 (N.D. 1997).

Collateral References.

Mortgages 440.

55 Am. Jur. 2d, Mortgages, § 641.

32-19-30. Service by publication — How made. [Repealed]

Repealed by S.L. 2005, ch. 302, § 30.

32-19-31. Summons to be published. [Repealed]

Repealed by S.L. 2005, ch. 302, § 30.

32-19-32. Copy of summons and complaint to be mailed. [Repealed]

Repealed by S.L. 2005, ch. 302, § 30.

32-19-33. Personal service equivalent to publication. [Repealed]

Repealed by S.L. 2005, ch. 302, § 30.

32-19-34. Personal service of summons and complaint may be made in any event. [Repealed]

Repealed by S.L. 2005, ch. 302, § 30.

32-19-35. Service by publication — When completed.

Service by publication is completed upon the expiration of thirty-six days after the first publication of the summons, or in case of personal service of the summons and complaint upon the defendant outside of the state, upon the expiration of fifteen days from such service.

Source:

S.L. 1935, ch. 241, § 7; R.C. 1943, § 32-1935.

32-19-36. Personal service of summons — How made.

Personal service of the summons may be made in the manner provided by the North Dakota Rules of Civil Procedure.

Source:

S.L. 1935, ch. 241, § 8; R.C. 1943, § 32-1936.

Cross-References.

Personal service of process, see N.D.R.Civ.P. 4(d).

32-19-37. Unknown defendants — How joined.

A person having or claiming an estate or interest in, or lien or encumbrance upon, the property described in the complaint and not in possession and not appearing of record in the office of the recorder, the clerk of the district court, or the county auditor of the county in which the land described in the complaint is situated may be proceeded against as persons unknown, and any order, judgment, or decree entered in a foreclosure action is valid and binding on the unknown persons, whether of age or minors, and on those claiming under the unknown persons. If any unknown persons are joined as defendants, the unknown persons must be designated in the summons as: “And all persons unknown, claiming any estate or interest in, or lien or encumbrance upon, the real estate described in the complaint”. As to unknown defendants the plaintiff at the time of filing the summons and complaint shall file an affidavit substantially in the following form:

State of North Dakota ) County of ss. being duly sworn says that the affiant is the (attorney for) plaintiff in the above entitled action: Affiant further says that as to all defendants proceeded against as “And all persons unknown, claiming any estate or interest in, or lien or encumbrance upon, the real estate described in the complaint” the interests of such unknown persons defendant in the land described in the complaint are not shown of record in the office of the recorder, the clerk of the district court, or the county auditor of the county of , that being the county in which the land is situated, and affiant does not know and is unable to ascertain the names, residences, or post-office addresses of any of the persons who are proceeded against as unknown persons defendant; that the relief sought in this action consists wholly or partially in excluding the unknown defendants from any interest in or lien upon the real estate described in the complaint except the right of redemption as provided by law.

Click to view

Source:

S.L. 1935, ch. 241, § 9; R.C. 1943, § 32-1937; S.L. 2001, ch. 120, § 1; 2005, ch. 302, § 24.

Notes to Decisions

Joinder of Unknown Defendants Permissive.

This section and N.D.C.C. § 32-19-40 permit, but do not require, unknown defendants to be made parties to a foreclosure action against mortgagors; failure of mortgagee to include unknown defendants is not a defense available to the mortgagors with regard to the foreclosure action against them. Evans Fin. Corp. v. Plecity, 315 N.W.2d 279, 1982 N.D. LEXIS 242 (N.D. 1982).

32-19-38. What the summons to contain.

The summons in a foreclosure action in which the persons unknown are named as defendants must contain, or have appended to it, a statement substantially as follows:

This action relates to the foreclosure of a mortgage or lien, as the case may be, upon (here describe the real estate involved in the action).

Source:

S.L. 1935, ch. 241, § 11; R.C. 1943, § 32-1938; 2005, ch. 302, § 25.

32-19-39. Judgment and decrees to be binding against whom.

All orders, judgments, or decrees entered in any action are binding upon each person proceeded against as a defendant, whether of age or minors, and each person claiming by, through, or under a defendant after the commencement of the action. The same are binding upon whose interests did not appear of record in the office of the recorder, county auditor, or clerk of the district court of the county of the action at the time of the commencement of the action.

Source:

S.L. 1935, ch. 241, § 12; R.C. 1943, § 32-1939; S.L. 2001, ch. 120, § 1; 2005, ch. 302, § 26.

Notes to Decisions

Persons Bound by Judgment.

A judgment of foreclosure is binding upon all persons proceeded against as defendants and upon “all persons whose interests did not appear of record in the office of the register of deeds [now recorder]” at the time the foreclosure action was commenced. Rott v. Mittleider, 441 N.W.2d 645, 1989 N.D. LEXIS 105 (N.D. 1989).

32-19-40. Persons holding unrecorded conveyance need not be made parties, when.

In any action to foreclose a mortgage or other lien upon real property, a person holding a conveyance or having a lien upon the property, if such conveyance or lien does not appear of record in the proper office at the time of the commencement of the action, does not need to be made a party to the action, and the judgment rendered and the proceedings in and of the action are conclusive as if the party had been made a party to the action.

Source:

S.L. 1963, ch. 251, § 1; 2005, ch. 302, § 27.

Notes to Decisions

Necessary Parties.

Only those persons having properly recorded interests in the property at the time of commencement of the foreclosure action need be made parties to the action. Rott v. Mittleider, 441 N.W.2d 645, 1989 N.D. LEXIS 105 (N.D. 1989).

32-19-41. Abandoned personal property — Disposal by record title owner.

  1. If real property is adjudicated to be abandoned by an affidavit under section 32-19-23.1 or by a petition under section 32-19-19, the grantee in a sheriff’s deed that has been recorded, or after receipt and recording of a deed in lieu of foreclosure, may retain and dispose of, without legal process, any personal property left on the real property.
  2. If the real property is not adjudicated to be abandoned by an affidavit under section 32-19-23.1 or by a petition under section 32-19-19, the grantee may retain and dispose of, without legal process, any personal property left on the real property thirty days after the issuance of a sheriff’s deed.
  3. If the total estimated value of personal property under subsection 2 is five hundred dollars or more, the record title owner shall make reasonable efforts to notify in writing the mortgagor or person who was entitled to possession of the real property during the redemption period by certified mail at least fifteen days before disposing of the personal property. Service by mail is complete upon mailing.
  4. The record title owner is entitled to the proceeds from the sale of the personal property, after all costs incidental to removal, storage, disposal, and sale of the property have been deducted.
  5. This section applies only to tracts of land not exceeding forty acres [16.19 hectares].
  6. If the record title owner cannot be located, any remainder from the proceeds of a sale must be delivered to the administrator of the state abandoned property office in accordance with chapter 47-30.1.

Source:

S.L. 1989, ch. 413, § 1; 1993, ch. 344, § 1; 1995, ch. 54, § 23; 2005, ch. 302, § 28; 2021, ch. 261, § 1, eff August 1, 2021.

CHAPTER 32-19.1 Short-Term Mortgage Redemption Act [Repealed]

[Repealed by S.L. 2005, ch. 302, § 30]

CHAPTER 32-19.2 Trustees for Commercial Buildings During Foreclosures

32-19.2-01. Appointment of trustee.

On application of the mortgagee or contract for deed vendor, in any action for the foreclosure of a real estate mortgage or for cancellation of a contract for deed upon any commercial building, including apartments of two or more units, the court, upon ten days’ notice to the mortgagor or contract for deed vendee, may, upon good cause being shown, appoint a trustee to take possession of the premises. Any person, other than the mortgagee or vendor, or its agents or employees, may act as trustee if the court deems the person qualified.

Source:

S.L. 1973, ch. 261, § 1; 1985, ch. 377, § 1; 1991, ch. 361, § 1.

Notes to Decisions

Good Cause.

Unpaid property taxes on the mortgaged property constitute good cause for the appointment of a trustee. Midwest Fed. Sav. Bank v. Symington, 423 N.W.2d 797, 1988 N.D. LEXIS 125 (N.D. 1988).

Legislature’s Intent.

This chapter is an exception to the principle embodied in N.D.C.C. § 28-24-11 that the mortgagor has exclusive rights to property and reflects the legislature’s intent to withhold from the mortgagor not only possession of certain commercial real estate, but also those rents used for payment of all utilities, all taxes and all insurance. Midwest Fed. Sav. Bank v. Symington, 423 N.W.2d 797, 1988 N.D. LEXIS 125 (N.D. 1988).

Purpose of Chapter.

The purpose of this chapter is to allow a trustee to take possession of the premises and pay necessary expenses with available funds. Midwest Fed. Sav. Bank v. Symington, 423 N.W.2d 797, 1988 N.D. LEXIS 125 (N.D. 1988).

Collateral References.

Mortgages 465-474, 550.

55 Am. Jur. 2d, Mortgages, §§ 943 et seq.

Receiver: propriety of appointing receiver, at behest of mortgagee, to manage or operate property during foreclosure action, 82 A.L.R.2d 1075.

Waste: what constitutes waste justifying appointment of receiver of mortgaged property, 55 A.L.R.3d 1041.

32-19.2-02. Authority and duties of trustee.

The trustee shall:

  1. Take possession of the premises.
  2. Pay, to the extent funds are available, all utilities, taxes, insurance, and expenses of maintenance and operation.
  3. Receive the rentals from tenants.
  4. Remove tenants for nonpayment of rent or for any other cause permissible by law.
  5. Rent premises.

Source:

S.L. 1973, ch. 261, § 2; 1991, ch. 361, § 2.

Notes to Decisions

Payment of Real Estate Taxes.

This section authorizes the trustee to pay from rentals collected during the period of redemption, real estate taxes which accrued prior to the sheriff’s sale of the mortgaged property. Midwest Fed. Sav. Bank v. Symington, 423 N.W.2d 797, 1988 N.D. LEXIS 125 (N.D. 1988).

32-19.2-03. Termination and accounting.

The appointment of a trustee continues until:

  1. The expiration of the period of redemption;
  2. The redemption of the premises by the mortgagor or contract vendee;
  3. The voluntary dismissal of the foreclosure or cancellation action; or
  4. Removal of the trustee by the court.

Within thirty days after the termination of appointment, the trustee shall file with the court a report of the trustee’s activities and all receipts and expenditures, and shall serve a copy on the mortgagor or the vendee by certified or registered mail, an affidavit of service by mail being competent proof thereof. The trustee’s account becomes final unless objected to within thirty days from the date of mailing to the mortgagor or contract vendee.

Source:

S.L. 1973, ch. 261, § 3; 1991, ch. 361, § 3.

32-19.2-04. Compensation of trustee and distribution of funds.

Upon the trustee’s account becoming final, the trustee shall pay all remaining funds, less the trustee’s fee and expenses, to the mortgagor or contract vendee or to such other person as may be otherwise provided by law. The trustee is entitled to a fee as set by the court. All expenses incurred by the trustee in performing duties under this chapter must be reimbursed out of available funds.

Source:

S.L. 1973, ch. 261, § 4; 1991, ch. 361, § 4.

CHAPTER 32-20 Foreclosure of Liens on Personal Property

32-20-01. Foreclosure authorized.

An action may be maintained in the district court to foreclose any lien upon personal property.

Source:

R.C. 1895, § 5897; R.C. 1899, § 5897; R.C. 1905, § 7512; C.L. 1913, § 8137; R.C. 1943, § 32-2001.

Cross-References.

Liens, see N.D.C.C. tit. 35.

Notes to Decisions

Conditional Sale Contract.

A conditional sale contract which retains title in the vendor in the form of a lien on the property may be properly enforced under this section, and such foreclosure will not bar an action by the vendor against the vendee for a deficiency. Massey-Ferguson, Inc. v. Pfeiffle, 124 N.W.2d 369, 1963 N.D. LEXIS 117 (N.D. 1963).

County or Justice Court.

Foreclosure of liens on personal property cannot be had by actions in the county or justice’s courts. Mead v. First Nat'l Bank, 24 N.D. 12, 138 N.W. 365, 1912 N.D. LEXIS 5 (N.D. 1912).

Enforcement Against Converter.

Right of owner of farm laborer’s lien to possession of property covered by it, on default, may be enforced against party who has converted property covered by the lien. Wonser v. Walden Farmers' Elevator Co., 31 N.D. 382, 153 N.W. 1012, 1915 N.D. LEXIS 191 (N.D. 1915).

Collateral References.

Liens 17-23.

51 Am. Jur. 2d, Liens, §§ 83 et seq.

53 C.J.S. Liens, §§ 29, 30, 32-37.

Also see entries under specific topics and remedies such as: Attachment, Attorney and Client, Banks and Banking, Chattel Mortgages, Execution, Factors, Judgment, Lis Pendens, Logs and Logging, Maritime Liens, Mechanics’ Liens, Pledges, Railroads, Sales, Secured Transactions, and Taxation.

Estoppel of or waiver by parties or participants as to irregularities and defects in sale to enforce lien, 2 A.L.R.2d 6, 78.

Public sale, what constitutes, 4 A.L.R.2d 575.

Chattel mortgages: necessity and sufficiency of notice to mortgagor of sale where chattel mortgage is sought to be foreclosed without judicial proceedings under power of sale, 30 A.L.R.2d 539.

Bankruptcy court’s injunction against mortgage or lien enforcement proceedings commenced, before bankruptcy, in another court, 40 A.L.R.2d 663.

Assumed or fictitious name or designation not showing names of persons interested, statutes as to actions by persons doing business under, as applicable to filing of lien for repairs, 42 A.L.R.2d 516.

Satisfaction or enforcement of lien for improvements made or placed on premises of another by mistake, 57 A.L.R.2d 263, 294.

Judgment lien, issuance of levy of execution as extending period of, 77 A.L.R.2d 1064.

Factor’s lien law, notice or statement prescribed by, 96 A.L.R.2d 727.

Chattel mortgages: what statute of limitation applies to action for surplus of proceeds from sale of collateral, 59 A.L.R.3d 1205.

Application, to security aspects of sales contract, of UCC § 1-208 dealing with “insecure” or “at will” acceleration clauses, 16 A.L.R.4th 1335.

32-20-02. Warrant to seize property — Issuance — Service.

If the plaintiff is not in possession of the property, the judge of the court in which the action is commenced, at the time of the commencement of the action or at any time before judgment, may issue a warrant commanding the sheriff to seize and safely keep the same to abide the final judgment in the action. The warrant may be issued upon the filing of:

  1. A verified complaint setting forth a claim for relief in favor of the plaintiff and against the defendant for the foreclosure of a lien upon the property possession of which is sought to be obtained; and
  2. An affidavit stating that the affiant knows or has good reason to believe that the seizure of the property is necessary to prevent removal, destruction, or concealment of the property or loss of the creditor’s proprietary interests therein.

The sheriff shall without delay serve copies of the warrant, affidavit, and undertaking upon the defendant in the same manner as the summons. If the defendant has not filed a special answer, pursuant to this chapter, within ten days after notice of the issuance of a warrant or if in the trial of the special answer the court finds for the plaintiff, the sheriff shall seize the property of the defendant. The sheriff shall attach perishable property or property the judge has determined, when issuing a warrant, is likely to be removed, destroyed, or concealed if the property is not attached without delay, notwithstanding the right of the defendant to file a special answer.

Source:

R.C. 1895, § 5898; R.C. 1899, § 5898; R.C. 1905, § 7513; C.L. 1913, § 8138; R.C. 1943, § 32-2002; S.L. 1985, ch. 82, § 80; 1985, ch. 378, § 1.

Notes to Decisions

Formal Defect.

Warrant of seizure is not wholly void merely because directed to sheriff or coroner, rather than just sheriff of county, this being a mere formal defect. Ravely v. Isensee, 57 N.D. 286, 221 N.W. 38, 1928 N.D. LEXIS 125 (N.D. 1928).

Jurisdiction of Court.

In an action to foreclose a chattel mortgage, the jurisdiction of the court to render judgment is not conditioned upon the taking of possession of the property under a warrant of seizure by the plaintiff. Workman v. Salzer Lumber Co., 51 N.D. 280, 199 N.W. 769, 1924 N.D. LEXIS 170 (N.D. 1924), overruled in part, Lyon v. Ford Motor Co., 2000 ND 12, 604 N.W.2d 453, 2000 N.D. LEXIS 6 (N.D. 2000).

Purpose.

There are obvious reasons for requiring certain qualifications of those authorized to withdraw blood: health of the individual is paramount, protection against infection and pain can best be afforded by allowing only qualified person to administer blood test, and accuracy of test depends in large part upon ability of person drawing blood to be able to obtain fair sample. Greaves v. North Dakota State Highway Comm'r, 432 N.W.2d 879, 1988 N.D. LEXIS 227 (N.D. 1988).

Tax Liens.

Warrants may be issued at the instance of treasurer of county to seize personal property on which a tax lien exists. Gull River Lumber Co. v. Brock, 7 N.D. 135, 73 N.W. 430 (N.D. 1897).

Third-Party Claim.

A third party owning property seized in a chattel mortgage foreclosure action may claim ownership orally or in writing. Morton v. Stensby, 59 N.D. 784, 232 N.W. 6, 1930 N.D. LEXIS 196 (N.D. 1930).

32-20-03. Form of warrant. [Repealed]

Repealed by S.L. 1985, ch. 378, § 5.

32-20-04. Undertaking.

Before issuing the warrant, the clerk must require a written undertaking on the part of the plaintiff with sufficient surety to the effect that if the defendant recovers judgment the plaintiff will pay all costs that may be awarded to the defendant, and all damages which the defendant may sustain by reason of any seizure under the warrant, not exceeding the sum named in the undertaking, which must be at least the amount claimed in the complaint and in no case less than one hundred dollars.

Source:

R.C. 1895, § 5900; R.C. 1899, § 5900; R.C. 1905, § 7515; C.L. 1913, § 8140; R.C. 1943, § 32-2004.

Notes to Decisions

Amended Complaint.

Undertaking in a sufficient amount on original complaint was also sufficient for amended complaint that sought additional damages beyond amount of undertaking, since amended complaint did not change basis of original complaint. Brunswick Corp. v. Haerter, 182 N.W.2d 852, 1971 N.D. LEXIS 150 (N.D. 1971).

Attorney’s Fees.

Party cannot recover, as damages sustained by reason of seizure under the warrant, attorney’s fees expended or incurred in defending the principal’s action. Krach v. Security State Bank, 43 N.D. 441, 175 N.W. 573, 1919 N.D. LEXIS 52 (N.D. 1919).

Counterclaim for Seizure.

A counterclaim for damages by reason of the seizure of property under a warrant cannot be set up in an action in which an undertaking is given. Strehlow v. McLeod, 17 N.D. 457, 117 N.W. 525, 1908 N.D. LEXIS 73 (N.D. 1908).

Effect of Failure to Indemnify.

In the event that the attachment creditor refuses to give indemnity to the sheriff, the latter may release the levy. Ravely v. Isensee, 57 N.D. 286, 221 N.W. 38, 1928 N.D. LEXIS 125 (N.D. 1928).

Joinder of Actions.

A suit for conversion brought against a sheriff who seized property to foreclose a chattel mortgage lien, and his successor who sold the property under special execution, did not involve an improper joinder of causes of action. Morton v. Stensby, 59 N.D. 784, 232 N.W. 6, 1930 N.D. LEXIS 196 (N.D. 1930).

Possession Without Warrant.

Lien holder can have the property seized if he is willing to furnish the requisite security, even without issuance of the warrant. Workman v. Salzer Lumber Co., 51 N.D. 280, 199 N.W. 769, 1924 N.D. LEXIS 170 (N.D. 1924), overruled in part, Lyon v. Ford Motor Co., 2000 ND 12, 604 N.W.2d 453, 2000 N.D. LEXIS 6 (N.D. 2000).

Ratification.

Where corporation had accepted the benefit of a seizure, it ratified the act of its assistant secretary in signing the undertaking and additional proof of the assistant secretary’s authority was not required. Brunswick Corp. v. Haerter, 182 N.W.2d 852, 1971 N.D. LEXIS 150 (N.D. 1971).

Signature.

Signature on undertaking was not invalidated by fact that on notary public’s acknowledgment a typographical error made it appear as if the corporation rather than the agent had signed the undertaking. Brunswick Corp. v. Haerter, 182 N.W.2d 852, 1971 N.D. LEXIS 150 (N.D. 1971).

Law Reviews.

Summary of North Dakota Supreme Court Decisions on Administrative Law — Revocation of Driver’s License, 71 N.D. L. Rev. 842 (1995).

32-20-04.1. Special answer to warrant — Trial.

Within ten days after notice of the issuing of a warrant to seize the defendant’s property, the defendant may, by special answer, deny the existence, at the time of the making of the affidavit, of the material facts stated therein, and may assert undue hardship as a defense. The issue so raised must be tried by the court before the trial of the action, and the burden of proof is upon the plaintiff. If the defendant has made an assignment for the benefit of the defendant’s creditors, the defendant’s assignee may answer and defend pursuant to this section.

Source:

S.L. 1985, ch. 378, § 2.

32-20-04.2. Trial of special answer.

In making its determination of the issue raised by the special answer, the court shall consider any undue hardship on the defendant that would result from an issuance of the warrant. If the court finds for the defendant, the judge shall tax the defendant’s costs of such trial, and shall enter an order dismissing the warrant or that the property attached be delivered to the defendant; and the jury or the court shall, on the trial of the action or thereafter, assess the damages sustained by the defendant by reason of the taking and detention or sale of the property attached or by reason of any injury thereto. The same, together with the costs so taxed, must be a setoff to the plaintiff’s demand, and if in excess of it, or the plaintiff fails to recover, the defendant shall have judgment for the amount due. If the court on the trial of such special issue finds for the plaintiff, the judge shall tax the plaintiff’s costs of such trial, and the amount so taxed must, if the plaintiff recovers, be taxed by the clerk as disbursement in the action. If the defendant or the defendant’s assignee recovers judgment in the action, said costs and the judgment must be offset.

Source:

S.L. 1985, ch. 378, § 3.

32-20-05. What judgment must state.

In an action for the foreclosure of a lien on personal property, judgment in favor of the plaintiff must specify the amount due on the lien and must direct a sale of the property to satisfy the same and the costs, by a person appointed thereby, or by an officer designated therein, in the manner provided for the sale of personal property under execution, and the application by the person or officer of the proceeds of the sale, less the person’s or officer’s fees and expenses, to the payment of the judgment and costs. It also may provide for the payment of the surplus to the owner of the chattel and for the safekeeping of the surplus, if necessary, until it is claimed by the owner. If the defendant upon whom the summons is served personally is liable for the amount of the lien, or for any part thereof, judgment may be entered against the defendant accordingly. A judgment for either the defendant or plaintiff must specify any amounts awarded pursuant to section 32-20-04.2.

Source:

C. Civ. P. 1877, § 674; R.C. 1895, § 5901; R.C. 1899, § 5901; R.C. 1905, § 7516; C.L. 1913, § 8141; R.C. 1943, § 32-2005; S.L. 1985, ch. 378, § 4.

Derivation:

Harston’s (Cal.) Practice, 726, 727.

Cross-References.

Disbursements taxed in judgment, see N.D.C.C. § 28-26-06.

Redemption, see N.D.C.C. §§ 35-01-16 to 35-01-18.

Sales under execution, see N.D.C.C. ch. 28-23.

Notes to Decisions

Deficiency Judgment.

Where a conditional sale contract provides that the purchaser shall be liable for a deficiency existing after a foreclosure sale, it will be enforced by the court when the defendant is served with personal notice of the action. Massey-Ferguson, Inc. v. Pfeiffle, 124 N.W.2d 369, 1963 N.D. LEXIS 117 (N.D. 1963).

Substantial Compliance.

A judgment of foreclosure which does not conform in material respects to this statute cannot be sustained. First Nat'l Bank v. Mahoney, 23 N.D. 177, 135 N.W. 771, 1912 N.D. LEXIS 72 (N.D. 1912).

Law Reviews.

Summary of North Dakota Supreme Court Decisions on Administrative Law — Revocation of Driver’s License, 71 N.D. L. Rev. 842 (1995).

32-20-06. Certain provisions relating to attachments applicable.

The provisions of the chapter on attachment in this title relative to rebonding, the sale of perishable property, and proceedings in case judgment is in favor of the defendant shall apply to proceedings under this chapter so far as the same are applicable.

Source:

R.C. 1895, § 5902; R.C. 1899, § 5902; R.C. 1905, § 7517; C.L. 1913, § 8142; R.C. 1943, § 32-2006.

Notes to Decisions

Stay of Execution.

Undertaking filed by defendants in action to foreclose chattel mortgage, in accordance with statute, operates as a stay of execution pending appeal. National Bank v. Hanberg, 10 N.D. 383, 87 N.W. 1006, 1901 N.D. LEXIS 55 (N.D. 1901).

Substitute Bond.

Where bond was given before the defendants’ appearance in action to foreclose lien on property, it was a substitute, rather than a discharge, bond and was applicable to proceedings to foreclose liens on personal property. Minneapolis Threshing Mach. Co. v. Warner, 52 N.D. 432, 203 N.W. 197, 1925 N.D. LEXIS 38 (N.D. 1925).

32-20-07. Property must be subject to jurisdiction of court.

In all cases of foreclosure of chattel liens of any kind, foreclosure will be ordered only upon proof that the property or some part thereof is in existence, subject to execution, and within the jurisdiction of the court.

Source:

District Court Rule No. 10; R.C. 1943, § 32-2007.

32-20-08. Other remedies not affected.

This chapter does not affect any right or remedy to foreclose or otherwise enforce or satisfy a lien upon or security interest in personal property without action as prescribed in sections 41-09-98 through 41-09-123.

Source:

R.C. 1895, § 5903; R.C. 1899, § 5903; R.C. 1905, § 7518; C.L. 1913, § 8143; R.C. 1943, § 32-2008; S.L. 1965, ch. 296, § 13; 2001, ch. 361, § 2.

Cross-References.

Foreclosure of statutory liens on personal property, see N.D.C.C. §§ 35-01-29, 35-01-30.

Notes to Decisions

Sufficiency of Complaint.

A complaint in an action to foreclose a chattel mortgage need not allege that no proceedings at law or otherwise have been had for the recovery of the debt. Second Nat'l Bank v. Werner, 19 N.D. 485, 126 N.W. 100, 1910 N.D. LEXIS 47 (N.D. 1910).

CHAPTER 32-21 Death by Wrongful Act

32-21-01. When action for death by wrongful act maintainable.

Whenever the death of a person shall be caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would have entitled the party injured, if death had not ensued, to maintain an action and recover damages in respect thereof, then and in every such case the person who, or the corporation, limited liability company, or company which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured or of the tort-feasor, and although the death shall have been caused under such circumstances as amount in law to felony.

Source:

R.C. 1895, § 5974; R.C. 1899, § 5974; R.C. 1905, § 7686; C.L. 1913, § 8321; R.C. 1943, § 32-2101; S.L. 1977, ch. 304, § 1; 1993, ch. 54, § 106.

Cross-References.

Limitation of actions for wrongful death, see N.D.C.C. § 28-01-18.

Notes to Decisions

Action Against Estate.

Wrongful death action under N.D.C.C. § 32-21-01 was barred by the probate code nonclaim provisions under N.D.C.C. § 30.1-19-03(1)-(3) because the representative was not a reasonably ascertainable creditor entitled to actual notice under N.D.C.C. § 30.1-19-01 when she told the representative of the pilot’s estate that no tort claims would be pursued, the claims were not filed within three months of the pilot’s death, and the nonclaim provisions were not subject to the tolling provisions of N.D.C.C. § 28-01-25(1) during the children’s minority. Olson v. Estate of Rustad, 2013 ND 83, 831 N.W.2d 369, 2013 N.D. LEXIS 85 (N.D. 2013).

Alternative Remedies.

Dependent of injured employee who subsequently dies may either maintain a civil action against the employer for damages suffered, or he may apply to workmen’s compensation bureau for an award against the employer. State ex rel. Woods v. Hughes Oil Co., 58 N.D. 581, 226 N.W. 586, 1929 N.D. LEXIS 252 (N.D. 1929).

North Dakota’s Dram Shop Act, N.D.C.C. § 5-01-06.1, does not supersede a wrongful death claim under N.D.C.C. § 32-21-01 because the North Dakota Supreme Court has concluded that the dram shop statutes do not supersede all other negligence liability of bar owners. Therefore, the Dram Shop Act was not the exclusive remedy for parties claiming to be injured by a bar owner’s negligence. Hoff v. Elkhorn Bar, 613 F. Supp. 2d 1146, 2009 U.S. Dist. LEXIS 58752 (D.N.D. 2009).

Choice of Law.

This section applied to complaint for wrongful death resulting from accident which occurred in Minnesota, where North Dakota had more significant interest. Kenna v. So-Fro Fabrics, 18 F.3d 623, 1994 U.S. App. LEXIS 4444 (8th Cir. N.D. 1994).

Common Law.

At common law there was no right of recovery for the wrongful or negligent injury of another, which caused his death. Harshman v. Northern Pac. Ry., 14 N.D. 69, 103 N.W. 412, 1905 N.D. LEXIS 20 (N.D. 1905).

There is no common law remedy for recovery for the wrongful death of another. Johnson v. International Harvester Co., 487 F. Supp. 1176, 1980 U.S. Dist. LEXIS 10716 (D.N.D. 1980).

Equitable Tolling.

Even though the state’s two-year statute of limitations for wrongful death actions may be tolled under the doctrine of equitable tolling, tolling was not warranted where the personal representative of an estate, after becoming aware of lack of diversity jurisdiction, failed to file an immediate state claim to protect the lawsuit. Braaten for Heirs of Boomgaarden v. Deere & Co., 1997 ND 202, 569 N.W.2d 563, 1997 N.D. LEXIS 247 (N.D. 1997).

Expert Testimony.

Testimony of the expert witness that the cause of fetal death was prolonged rupture of the membranes with associated chorioamnionitis and probably a beta streptococcal septicemia of the infant, and that the mother and fetus received substandard medical care supported the trial court’s findings of fact on negligence and proximate cause of the physician. Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988).

Federal Procedures.

For a decision outlining procedures to be used for punitive damages claims in wrongful death actions before the Eighth Circuit, see Puppe v. A.C. & S., Inc., 733 F. Supp. 1355, 1990 U.S. Dist. LEXIS 3418 (D.N.D. 1990).

An argument for punitive damages in a wrongful death action may be presented to the jury only after a verdict in favor of plaintiff is returned as to liability and damages. Puppe v. A.C. & S., Inc., 733 F. Supp. 1355, 1990 U.S. Dist. LEXIS 3418 (D.N.D. 1990).

Interstate Commerce.

The statute does not apply if the death occurs while the deceased is engaged in interstate commerce. Hein v. Great N. Ry., 34 N.D. 440, 159 N.W. 14, 1916 N.D. LEXIS 53 (N.D. 1916).

Jury Trial.

As a matter of North Dakota law, punitive damages claims may be argued to a jury in wrongful death actions. Puppe v. A.C. & S., Inc., 733 F. Supp. 1355, 1990 U.S. Dist. LEXIS 3418 (D.N.D. 1990).

Where a decedent with brain damage committed suicide while working for a services provider, the jury verdict in favor of the services provider regarding the mother’s wrongful death claim was upheld because sudden emergency and hindsight instructions were proper and there was sufficient evidence to support the jury’s verdict. Zebley v. Heartland Indus. of Dawson, Inc., 625 F.3d 449, 2010 U.S. App. LEXIS 23417 (8th Cir. N.D. 2010).

Legal Obligation.

This statute does not contemplate or require a legal obligation on the part of the deceased toward the survivors to entitle them to maintain the action. Satterberg v. Minneapolis, St. P. & S. St. M. Ry., 19 N.D. 38, 121 N.W. 70, 1909 N.D. LEXIS 71 (N.D. 1909).

Wrongful death claim under N.D.C.C. § 32-21-01 fell squarely within the protections of N.D.C.C. §§ 9-10-01 and 9-10-06 because, in this case, bar owners undertook a duty to act with due care when they physically ejected an intoxicated person from their bar in the midst of winter. Because there was a factual dispute as to whether the bar owners exercised reasonable and ordinary care in ejecting the decedent from the bar a second time, and whether injury or death was foreseeable as a result of the ejection, judgment on the pleadings was not appropriate. Hoff v. Elkhorn Bar, 613 F. Supp. 2d 1146, 2009 U.S. Dist. LEXIS 58752 (D.N.D. 2009).

Mental Anguish.

Damages for mental anguish may be recovered in a wrongful death action. Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988); Dahl ex rel. Dahl v. North Am. Creameries, Inc., 61 N.W.2d 916 (N.D. 1953), overruled on other grounds, Hopkins v. McBane, 427 N.W.2d 85, 77 A.L.R.4th 391 (N.D. 1988); Hyyti v. Smith, 67 N.D. 425, 272 N.W. 747 (1937), distinguished, Jacobson v. Mutual Benefit Health & Accident Ass’n, 73 N.D. 108, 11 N.W.2d 442 (1943), overruled on other grounds, Hopkins v. McBane, 427 N.W.2d 85, 77 A.L.R.4th 391 (N.D. 1988); Stejskal v. Darrow, 55 N.D. 606, 215 N.W. 83, 53 A.L.R. 1096 (1927), overruled on other grounds, Hopkins v. McBane, 427 N.W.2d 85, 77 A.L.R.4th 391 (N.D. 1988) and Haug v. Great N. Ry., 8 N.D. 23, 77 N.W. 97 (N.D. 1898), overruled in part, Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988).

Noncompliance with Workmen’s Compensation Act.

Where employer had failed to comply with the Workmen’s Compensation Act, employee’s father had a cause of action for his son’s wrongful death at the hands of another employee where employer’s negligent acts contributed to the accident. Olson v. Hemsley, 48 N.D. 779, 187 N.W. 147, 1922 N.D. LEXIS 101 (N.D. 1922).

Recoverable Damages.

One may recover damages for loss of society, comfort and companionship in an action for the wrongful death of a child. Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988).

Statute of Limitations.

The two-year statute of limitations period contained in subdivision 4 of N.D.C.C. § 28-01-18 is applicable to wrongful death actions. Sheets v. Graco, Inc., 292 N.W.2d 63, 1980 N.D. LEXIS 225 (N.D. 1980).

Unborn Child.

This section authorizes a wrongful death action against one whose tortious conduct causes death of a viable unborn child. Hopkins v. McBane, 359 N.W.2d 862, 1984 N.D. LEXIS 444 (N.D. 1984).

Failure in a medical malpractice action to prove such strictly pecuniary losses as lost wages or out-of-pocket expenses did not preclude recovery of any damages for the death of an unborn child. Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988).

Collateral References.

Death 7-33.

22A Am. Jur. 2d, Death, § 1 et seq.

25A C.J.S. Death, §§ 17-81, 83-89.

Spouse: action against spouse or estate for causing death of other spouse, 28 A.L.R.2d 662.

Counterclaim: claim for wrongful death as subject of counterclaim or cross action in negligence action against decedent’s estate, and vice versa, 6 A.L.R.2d 256.

Drowning of child, liability of landowner for, 8 A.L.R.2d 1254.

Suicide, civil liability for death by, 11 A.L.R.2d 751.

Sheriff: civil liability of sheriff or other officer charged with keeping jail or prison for death or injury of prisoner, 14 A.L.R.2d 353.

Oil-burning furnace: liability of one servicing, repairing, or adjusting an oil-burning furnace or other oil-burning heating appliance for personal injury, death, or property damage, 18 A.L.R.2d 1326.

Elevators: liability of landlord for injury to or death of employee of tenant, occasioned by negligent construction, maintenance, or operation of elevator, 19 A.L.R.2d 272.

Street lights: liability for injury or death occurring from defects in, or negligence in construction, operation, or maintenance of electric street-lighting equipment, apparatus, and the like, 19 A.L.R.2d 344.

Landslide or cave-in, liability of landowner for injury to or death of child caused by, 28 A.L.R.2d 195.

Lumber: liability of landowner for injury to or death of child resulting from piled or stacked lumber or other building materials, 28 A.L.R.2d 218.

Comment note: Recovery for death resulting from mental shock or distress in connection with injury to or interference with tangible property, 28 A.L.R.2d 1070.

Nuisance: liability of landlord for injury or death of third person on street or highway by nuisance created by tenant for month to month, year to year, or the like, 39 A.L.R.2d 973.

Electric wires passing through or near trees, liability for injury or death of adult from, 40 A.L.R.2d 1299.

Burns: liability for injury to or death of child from burns caused by hot ashes, cinders, or other hot waste material, 42 A.L.R.2d 930.

Death of beneficiary as affecting right of action under death statute, 43 A.L.R.2d 1291.

Well or shaft: liability of landlord for injury or death of adult tenant falling down unhoused well, cistern, mine shaft, or the like, 46 A.L.R.2d 1069, 1076.

Broken glass or other sharp object, landowner’s liability for injury or death of child caused by cut or puncture from, 47 A.L.R.2d 1048.

Electrification of guy wire, liability for injury or death from, 55 A.L.R.2d 129.

Municipal immunity from liability for acts in performance of governmental functions, rule applicable in case of death as result of nuisance, 56 A.L.R.2d 1415.

Crane, derrick, or other movable machine, liability of electric power company for injury or death resulting from contact of machine with electric line, 69 A.L.R.2d 93.

Crane, derrick, or other movable machine, liability of owner, occupant, or operator of premises or machinery for injury or death resulting from contact of machine with electric line, 69 A.L.R.2d 160.

Plumbing system or equipment, landlord’s liability for personal injury or death of tenant or his privies from, 84 A.L.R.2d 1143.

Water heater: landlord’s liability for personal injury or death of tenant or privies, 84 A.L.R.2d 1190.

Breach of implied warranty as basis of action ex contractu for wrongful death, 86 A.L.R.2d 316.

Refrigerator, liability for injury or death of child in, 86 A.L.R.2d 709.

Heating system or equipment, landlord’s liability for personal injury or death of tenant or his privies from, 86 A.L.R.2d 791.

Electrical system or equipment, landlord’s liability for personal injury or death of tenant or privies from, 86 A.L.R.2d 838.

Fact that tortfeasor is member of class of beneficiaries as affecting right to maintain action for wrongful death, 95 A.L.R.2d 585.

Liability of electric power, telephone, or telegraph company for personal injury or death from fall of pole for injury or death resulting when pipe or other object is manually brought into contact with, 97 A.L.R.2d 664.

Social club, liability for injury to or death of nonmember, 15 A.L.R.3d 1013.

Master’s liability for injury to or death of person, or damage to property, resulting from fire allegedly caused by servant’s smoking, 20 A.L.R.3d 893.

Child social guest, liability for injury or death of, 20 A.L.R.3d 1127.

Wild animal, owner’s or keeper’s liability for personal injury or death inflicted by, 21 A.L.R.3d 603; 92 A.L.R.3d 832; 66 A.L.R. Fed. 305.

Fellow employee: right to maintain direct action against fellow employee for injury or death covered by workmen’s compensation, 21 A.L.R.3d 845.

Uninsured motorist clause, coverage of claim for wrongful death of insured, 26 A.L.R.3d 935.

Railroad’s liability for injury to or death of child climbing or playing on moving train other than as paying or proper passenger, 35 A.L.R.3d 9.

Abortion: right of action for injury to or death of woman who consented to illegal abortion, 36 A.L.R.3d 630.

Prenatal injuries, liability for, 40 A.L.R.3d 1222.

Glass door, panel, or wall, liability of owner or proprietor for injury or death caused by collision with, 41 A.L.R.3d 176.

Bottled gas: liability of one selling or distributing liquid or bottled fuel gas, for personal injury, death, or property damage, 41 A.L.R.3d 782.

Liability of prison authorities for injury to prisoner directly caused by assault by other prisoner, 41 A.L.R.3d 1021.

Landlord’s liability to tenant or tenant’s invitees for injury or death due to ice or snow in areas or passageways used in common by tenants, 49 A.L.R.3d 387.

Parent’s desertion, abandonment, or failure to support minor child as affecting right or measure of recovery for wrongful death of child, 53 A.L.R.3d 566.

Druggist’s civil liability for suicide consummated with drugs furnished by him, 58 A.L.R.3d 828.

Modern status of rule denying a common-law recovery for wrongful death, 61 A.L.R.3d 906.

Walk to school: permitting child to walk to school unattended as contributory negligence of parents in action for injury or death of child, 62 A.L.R.3d 541.

Parent: death action by or in favor of parent against unemancipated child, 62 A.L.R.3d 1299.

Liability of landlord for personal injury or death due to inadequacy or lack of lighting on portion of premises used in common by tenants, 66 A.L.R.3d 202.

Landlord’s liability for personal injury or death due to defects in appliances supplied for use of different tenants, 66 A.L.R.3d 374.

Right to maintain action or to recover damages for death of unborn child, 84 A.L.R.3d 411.

Governmental liability from operation of zoo, 92 A.L.R.3d 832.

Effect of death of beneficiary upon right of action under death statute, 13 A.L.R.4th 1060.

Liability of owner or occupant of premises for injury or death resulting from contact of crane, derrick, or other movable machine with electric line, 14 A.L.R.4th 913.

Liability of hospital, physician, or other individual medical practitioner for injury or death resulting from blood transfusion, 20 A.L.R.4th 136.

Res ipsa loquitur as to cause of or liability for real-property fires, 21 A.L.R.4th 929.

Liability of blood supplier or donor for injury or death resulting from blood transfusion, 24 A.L.R.4th 508.

Modern status of intentional infliction of mental distress as independent tort: “outrage”, 38 A.L.R.4th 998.

Excessiveness and adequacy of damages for personal injuries resulting in death of minor, 49 A.L.R.4th 1076.

Willful, wanton, or reckless conduct of coemployee as ground of liability despite bar workers’ compensation law, 57 A.L.R.4th 888.

Excessiveness or adequacy of damages awarded for noneconomic loss caused by personal injury or death of parent, 61 A.L.R.4th 251.

Excessiveness or adequacy of damages awarded for parents’ noneconomic loss caused by personal injury or death of child, 61 A.L.R.4th 413.

Tort liability for window washer’s injury or death, 69 A.L.R.4th 207.

Effect of death of beneficiary, following wrongful death, upon damages, 73 A.L.R.4th 441.

When is death “instantaneous” for purposes of wrongful death or survival action, 75 A.L.R.4th 151.

Medical malpractice: measure and elements of damages in actions based on loss of chance, 81 A.L.R.4th 485.

Landlord’s liability for injury or death of tenant’s child from lead poisoning, 19 A.L.R.5th 405.

Liability of electric company to one other than employee for injury or death arising from commencement or resumption of service, 46 A.L.R.5th 423.

Liability of manufacturer or seller for injury or death allegedly caused by use of contraceptive, 54 A.L.R.5th 1.

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 A.L.R.5th 513.

Liability of hotel, motel, resort, or private membership club or association operating swimming pool, for injury or death of guest or member, 55 A.L.R.5th 463.

Venue of wrongful-death action, 58 A.L.R.5th 535.

Liability of landlord for injury or death occasioned by swimming pool maintained for tenants, 62 A.L.R.5th 475.

Liability of owner of private residential swimming pool for injury or death occasioned thereby, 64 A.L.R.5th 1.

Death or injury to occupant of airplane from collision or near-collision with another aircraft, 64 A.L.R.5th 235.

Liability for donee’s contraction of Acquired Immune Deficiency Syndrome (AIDS) from blood transfusion, 64 A.L.R.5th 333.

Liability of United States, under Federal Tort Claims Act (28 USCS §§ 1346, 2671 et seq.), for death or injury sustained by visitor to national park or national forest, 66 A.L.R. Fed. 305.

Law Reviews.

Summary of significant decisions rendered by the North Dakota Supreme Court in 1989 relating to wrongful death, 65 N.D. L. Rev. 600 (1989).

Sovereign Immunity — Judicial Abrogation of North Dakota’s Sovereign Immunity Results in Its Possible Legislative Reassertion and Legislation to Provide Injured Parties with a Remedy for the Torts Committed by the State or Its Agents, 71 N.D. L. Rev. 761 (1995).

Summary of North Dakota Supreme Court Decisions on Torts — negligence, 71 N.D. L. Rev. 892 (1995).

For Article: The Worth of a Human Life, see 85 N.D. L. Rev. 123 (2009).

32-21-02. Measure of recovery.

In an action brought under the provisions of this chapter, the jury shall give such damages as it finds proportionate to the injury resulting from the death to the persons entitled to the recovery.

Source:

R.C. 1895, § 5975; R.C. 1899, § 5975; R.C. 1905, § 7687; C.L. 1913, § 8322; R.C. 1943, § 32-2102.

Notes to Decisions

Amount of Award.

Verdict of five thousand eight hundred dollars to mother for wrongful death of her son, aged twenty-nine, who was unmarried, in good health, and a good farmer, residing with and devoted to her, was not excessive. Schultz v. Winston & Newell Co., 68 N.D. 674, 283 N.W. 69, 1938 N.D. LEXIS 156 (N.D. 1938).

Seventy thousand dollars was an appropriate award for wrongful death of fifty-six-year-old wife who had been in good health, was active in care and counseling of her husband, kept business records, was a good housekeeper, tended to incidental affairs, and left two adult sons. Brauer v. James J. Igoe & Sons Constr., 186 N.W.2d 459, 1971 N.D. LEXIS 165 (N.D. 1971).

Compensatory damages of $200,000 were awarded in suit against United States to recover for death of mother who was survived by three minor children after being killed by husband, a mental patient who was on leave of absence from veterans’ hospital. Merchants Nat'l Bank & Trust Co. v. United States, 272 F. Supp. 409, 1967 U.S. Dist. LEXIS 9117 (D.N.D. 1967).

Evidence.

Evidence of a driver’s intoxication was not relevant under N.D. R. Evid. 402 where although the family members were allowed to recover pain, suffering, mental anguish, and emotional distress damages from their loved ones’ deaths, any damages due to the driver’s negligence preceding the deaths, including intoxication, were not compensable under N.D.C.C. §§ 32-21-02 or 32-03.2-02. Zander v. Morsette, 2021 ND 84, 959 N.W.2d 838, 2021 N.D. LEXIS 84 (N.D. 2021).

Basis of Recovery.

In awarding damages for death, a jury may consider pecuniary value of services which the beneficiary might reasonably have expected. Stejskal v. Darrow, 55 N.D. 606, 215 N.W. 83, 1927 N.D. LEXIS 138 (N.D. 1927), overruled, Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988); Umphrey v. Deery, 78 N.D. 211, 48 N.W.2d 897, 1951 N.D. LEXIS 85 (N.D. 1951).

Mortality tables introduced in evidence are not binding on the jury, and jury may decide that mother suing for wrongful death of son will live beyond her computed life expectancy. Schultz v. Winston & Newell Co., 68 N.D. 674, 283 N.W. 69, 1938 N.D. LEXIS 156 (N.D. 1938).

Substantial damages could be awarded under the Wrongful Death Act, even though no mortality tables were introduced in evidence. Schultz v. Winston & Newell Co., 68 N.D. 674, 283 N.W. 69, 1938 N.D. LEXIS 156 (N.D. 1938).

Factors to be considered by jury in an action for benefit of wife and minor children for wrongful death of husband include the decedent’s age, health, condition in life, habits of industry and sobriety, mental and physical capacity, disposition to frugality, opportunities and customary earnings of the deceased and use he made of them and his expectation of life. Umphrey v. Deery, 78 N.D. 211, 48 N.W.2d 897, 1951 N.D. LEXIS 85 (N.D. 1951).

Age, circumstances, condition, and relation to the deceased of the party or parties for whose benefit the action was brought may be considered. Umphrey v. Deery, 78 N.D. 211, 48 N.W.2d 897, 1951 N.D. LEXIS 85 (N.D. 1951).

Papers used by decedent in preparing his income tax return were competent evidence of the value of the pecuniary support he furnished to his family, and could be considered by jury in determining his earning capacity. Skramstad v. Miller, 78 N.D. 450, 49 N.W.2d 652, 1951 N.D. LEXIS 104 (N.D. 1951).

Damages are not limited to those for loss of money or income, but include loss of any and all services which a child would probably have received from his father or mother. Dahl ex rel. Dahl v. North Am. Creameries, 61 N.W.2d 916, 1953 N.D. LEXIS 98 (N.D. 1953), overruled, Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988).

Jury has right to consider the value of the nurture and instruction, moral and physical, the training, and protection which a father or mother gives to their child. Dahl ex rel. Dahl v. North Am. Creameries, 61 N.W.2d 916, 1953 N.D. LEXIS 98 (N.D. 1953), overruled, Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988).

Jury considering loss to child by parents’ death is not limited to time during which she is a minor if it can conclude from the evidence that such services would have continued after she attained majority. Dahl ex rel. Dahl v. North Am. Creameries, 61 N.W.2d 916, 1953 N.D. LEXIS 98 (N.D. 1953), overruled, Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988); Henke v. Peyerl, 89 N.W.2d 1, 1958 N.D. LEXIS 70 (N.D. 1958).

Expense of education of children is relevant to the items of money or services that could reasonably be expected from the decedent. Quam v. Wengert, 86 N.W.2d 741, 1957 N.D. LEXIS 176 (N.D. 1957).

Evidence that decedent would have achieved automatic pay raises under civil service system was admissible to show his future earning power, in absence of a showing that he was in danger of losing his job. Quam v. Wengert, 86 N.W.2d 741, 1957 N.D. LEXIS 176 (N.D. 1957).

Death of Survivor Prior to Trial.

Recovery on behalf of a survivor in a wrongful death action is limited to the period of survival if the survivor has died before trial of the action, regardless of actuarial life expectancy. Schneider v. Baisch, 256 N.W.2d 370, 1977 N.D. LEXIS 158 (N.D. 1977).

Disqualification.

Disqualification issues that apply to the right of an heir at law to share as a beneficiary in the damages recovered in a wrongful death action do not affect the statutory hierarchy and procedural requirements for bringing an action under this section. Goodleft v. Gullickson, 556 N.W.2d 303, 1996 N.D. LEXIS 257 (N.D. 1996).

Evidence.
—Family Photograph.

In an action for wrongful death of wife and mother, under this chapter, the admission of a family photograph on a Christmas card served to arouse the passion and sympathy of the jury and constituted prejudicial error. Larson v. Meyer, 135 N.W.2d 145 (N.D. 1965), overruled on other grounds, Hopkins v. McBane, 427 N.W.2d 85, 77 A.L.R.4th 391 (N.D. 1988), distinguished, Crosby v. Sande, 180 N.W.2d 164, 1970 N.D. LEXIS 141 (N.D. 1970).

Loss of Society, Comfort, and Companionship.

Parents are entitled to recover in a wrongful death action for the loss of society, comfort, and companionship of their child. McKee v. Thompson, 558 F. Supp. 68, 1983 U.S. Dist. LEXIS 19278 (D.N.D. 1983).

Mental Anguish.

Damages for mental anguish may be recovered in a wrongful death action. Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988); Dahl ex rel. Dahl v. North Am. Creameries, Inc., 61 N.W.2d 916 (N.D. 1953), overruled on other grounds, Hopkins v. McBane, 427 N.W.2d 85, 77 A.L.R.4th 391 (N.D. 1988); Hyyti v. Smith, 67 N.D. 425, 272 N.W. 747 (1937), distinguished, Jacobson v. Mutual Benefit Health & Accident Ass’n, 73 N.D. 108, 11 N.W.2d 442 (1943), overruled on other grounds, Hopkins v. McBane, 427 N.W.2d 85, 77 A.L.R.4th 391 (N.D. 1988); Stejskal v. Darrow, 55 N.D. 606, 215 N.W. 83, 53 A.L.R. 1096 (1927), overruled on other grounds, Hopkins v. McBane, 427 N.W.2d 85, 77 A.L.R.4th 391 (N.D. 1988) and Haug v. Great N. Ry., 8 N.D. 23, 77 N.W. 97 (N.D. 1898), overruled in part, Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988).

Pecuniary Injury.

In widow’s action for wrongful killing of her husband, where the complaint showed the survival of a widow and minor children of tender years, no specific allegations showing pecuniary damages to such widow and children were required. Haug v. Great N. Ry., 8 N.D. 23, 77 N.W. 97 (N.D. 1898), overruled in part, Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988), see also, Puppe v. A.C. & S., Inc., 733 F. Supp. 1355, 1990 U.S. Dist. LEXIS 3418 (D.N.D. 1990). See also Puppe v. A.C. & S., Inc., 733 F. Supp. 1355, 1990 U.S. Dist. LEXIS 3418 (D.N.D. 1990).

Where there exists a reasonable probability of pecuniary advantage or benefit to one from the continuing life of another, arising from legal or family relations, the ultimate extinction of that life is a pecuniary injury. Umphrey v. Deery, 78 N.D. 211, 48 N.W.2d 897, 1951 N.D. LEXIS 85 (N.D. 1951).

Presumption of Loss.

Pecuniary loss need not be established by proof in dollars and cents, but a substantial loss will be presumed. Henke v. Peyerl, 89 N.W.2d 1, 1958 N.D. LEXIS 70 (N.D. 1958).

In wrongful death actions, substantial damages will be presumed, although there are no hard and fast rules for determining the amount of damages, which are not susceptible to precise arithmetical calculation, and the exact amount of recoverable damages must, therefore, be left to the good judgment of the trier of fact, and need not be established by proof in dollars and cents. Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988).

Punitive Damages.

Punitive or exemplary damages cannot be recovered in an action under this statute. Hyyti v. Smith, 67 N.D. 425, 272 N.W. 747, 1937 N.D. LEXIS 95 (N.D. 1937), overruled, Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988).

North Dakota wrongful death law does not provide for the recovery of punitive damages. Johnson v. International Harvester Co., 487 F. Supp. 1176, 1980 U.S. Dist. LEXIS 10716 (D.N.D. 1980).

Prohibition against recovery of punitive damages in a wrongful death action does not violate equal protection under the federal constitution nor the North Dakota constitution. Johnson v. International Harvester Co., 487 F. Supp. 1176, 1980 U.S. Dist. LEXIS 10716 (D.N.D. 1980).

As a matter of North Dakota law, punitive damages claims may be argued to a jury in wrongful death actions. Puppe v. A.C. & S., Inc., 733 F. Supp. 1355, 1990 U.S. Dist. LEXIS 3418 (D.N.D. 1990).

An argument for punitive damages in a wrongful death action may be presented to the jury only after a verdict in favor of plaintiff is returned as to liability and damages. Puppe v. A.C. & S., Inc., 733 F. Supp. 1355, 1990 U.S. Dist. LEXIS 3418 (D.N.D. 1990).

Sound Judgment of Jury.

Value of counsel, advice, guidance, loving care, and solicitude of both father and mother is difficult to ascertain monetarily, and must be left to the sound judgment of the jury where it is not shown that such judgment was swayed beyond reason and common sense by passion or prejudice. Dahl ex rel. Dahl v. North Am. Creameries, 61 N.W.2d 916, 1953 N.D. LEXIS 98 (N.D. 1953), overruled, Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988).

Splitting Cause of Action.

Plaintiff may later sue for damages for loss of support where in prior action for wrongful death her attorney, who also represented the defendant, did not inform her of her right to recover for such loss. Hyyti v. Smith, 67 N.D. 425, 272 N.W. 747, 1937 N.D. LEXIS 95 (N.D. 1937), overruled, Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988).

Unborn Child.

Failure in a medical malpractice action, to prove such strictly pecuniary losses as lost wages or out-of-pocket expenses did not preclude recovery of any damages for the death of an unborn child. Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988).

Damages in the amount of $50,000 for mental anguish and grief and $100,000 for loss of companionship, society and comfort were not clearly erroneous in an action for the death of an unborn child which would have been the plaintiff’s only daughter, in view of special significance of the mother-daughter relationship in Native American culture. Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988).

Wrongful Death of Child.

Measure of damages recoverable by the father for the death, by wrongful act, of a minor child is the probable value of the services of the child during minority, considering the cost of support and maintenance during the early and helpless part of its life. Haug v. Great N. Ry., 8 N.D. 23, 77 N.W. 97 (N.D. 1898), overruled in part, Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988). See also Puppe v. A.C. & S., Inc., 733 F. Supp. 1355, 1990 U.S. Dist. LEXIS 3418 (D.N.D. 1990); Scherer v. Schlaberg, 18 N.D. 421, 122 N.W. 1000, 1909 N.D. LEXIS 49 (N.D. 1909), Scherer v. Schlaberg, 18 N.D. 421, 122 N.W. 1000, 1909 N.D. LEXIS 49 (N.D. 1909).

Question of father’s pecuniary injury by wrongful death of child who was seriously ill with uremia at time wrongful act was committed was purely a matter of speculation, conjecture, and guesswork and limited father’s recovery to nominal damages. Scherer v. Schlaberg, 18 N.D. 421, 122 N.W. 1000, 1909 N.D. LEXIS 49 (N.D. 1909).

Collateral References.

Death 78-101.

22A Am. Jur. 2d, Death, §§ 186 et seq.

25A C.J.S. Death, §§ 95-129.

Instruction mentioning or suggesting specific sum as damages, 2 A.L.R.2d 454.

Marriage of child, or probability of marriage, as affecting measure of recovery by parents in death action, 7 A.L.R.2d 1380.

Change in cost of living or in purchasing power of money as affecting damages for personal injuries or death, 12 A.L.R.2d 611.

Infant, measure and elements of damages for personal injury resulting in death of, 14 A.L.R.2d 485.

Annuity, cost of, as factor for consideration in fixing damages in death action, 53 A.L.R.2d 1454.

Nominal damages, recovery in wrongful death action, 69 A.L.R.2d 628.

Present worth: admissibility in wrongful death action of testimony of actuary or mathematician for purpose of establishing present worth of pecuniary loss, 79 A.L.R.2d 259.

Pension, retirement income, social security payments, and the like, of deceased, as affecting recovery in wrongful death action, 81 A.L.R.2d 949.

Social security benefits, damages for wrongful death of husband or father as affected by receipt of, 84 A.L.R.2d 764.

Gratuitous care: damages for personal injury or death as including value of care and nursing gratuitously rendered, 90 A.L.R.2d 1323.

Wrongful death damages for loss of expectancy of inheritance from decedent, 42 A.L.R.5th 465.

Interest: recovery of prejudgment interest on wrongful death damages, 96 A.L.R.2d 1104.

Medical expenses: necessity and sufficiency, in personal injury or death action, of evidence as to reasonableness of amount charged or paid for accrued medical, nursing, or hospital expenses, 12 A.L.R.3d 1347.

Parent’s desertion, abandonment, or failure to support minor child as affecting right or measure of recovery for wrongful death of child, 53 A.L.R.3d 566.

Propriety of taking income tax into consideration in fixing damages in personal injury or death action, 16 A.L.R.4th 589.

Effect of anticipated inflation on damages for future losses—modern cases, 21 A.L.R.4th 21.

Recovery of damages for grief or mental anguish resulting from death of child—modern cases, 45 A.L.R.4th 234.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in farming, ranching, or agricultural labor, 46 A.L.R.4th 220.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of homemaker, 47 A.L.R.4th 100.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in trades and manual occupations, 47 A.L.R.4th 134.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of retired persons, 48 A.L.R.4th 229.

Excessiveness and adequacy of damages for personal injuries resulting in death of minor, 49 A.L.R.4th 1076.

Validity, construction, and effect of statute limiting amount recoverable in dram shop action, 78 A.L.R.4th 542.

Wrongful death damages for loss of expectancy of inheritance from decedent, 42 A.L.R.5th 465.

Law Reviews.

Parent & Child — Loss of Consortium — Negligent Entrustment — Tort Law: North Dakota Allows Recovery for Loss of Filial Consortium and Extends Doctrine of Negligent Entrustment to Include Gun Retailer, 65 N.D. L. Rev. 219 (1989).

For Article: The Worth of a Human Life, see 85 N.D. L. Rev. 123 (2009).

32-21-03. Who may bring action.

The action shall be brought by the following persons in the order named:

  1. The surviving husband or wife, if any.
  2. The surviving children, if any.
  3. The surviving mother or father.
  4. A surviving grandparent.
  5. The personal representative.
  6. A person who has had primary physical custody of the decedent before the wrongful act.

If any person entitled to bring the action refuses or neglects so to do for a period of thirty days after demand of the person next in order, that person may bring the action.

Source:

R.C. 1895, § 5976; R.C. 1899, § 5976; R.C. 1905, § 7688; C.L. 1913, § 8323; S.L. 1917, ch. 106, § 1; 1925 Supp. § 8323. R.C. 1943, § 32-2103; S.L. 1997, ch. 287, § 1.

Notes to Decisions

Actions by Children.

Adult children’s action against a doctor and a hospital under the North Dakota Wrongful Death Act, N.D.C.C. ch. 32-21, should not have been dismissed because as children of a decedent, the children were allowed to seek recovery of damages under N.D.C.C. §§ 32-21-03 and 32-21-04, and the non-economic damages requested by the children were permitted under N.D.C.C. § 32-03.2-04. Weigel v. Lee, 2008 ND 147, 752 N.W.2d 618, 2008 N.D. LEXIS 143 (N.D. 2008).

Disqualification.

Disqualification issues that apply to the right of an heir at law to share as a beneficiary in the damages recovered in a wrongful death action do not affect the statutory hierarchy and procedural requirements for bringing an action under this section. Goodleft v. Gullickson, 556 N.W.2d 303, 1996 N.D. LEXIS 257 (N.D. 1996).

Effect of Collateral Judgment.

A wife-plaintiff in an action for wrongful death of her husband is a privy to that action as a representative and heir, but is not a privy to that action in her capacity as an individual bringing a subsequent action for her personal injuries arising from the same transaction and is not entitled to summary judgment on doctrine of res judicata in action against same defendants. Armstrong v. Miller, 200 N.W.2d 282, 1972 N.D. LEXIS 129 (N.D. 1972).

Where special administrator represented the estate in defending third-party action for contribution and represented decedent’s surviving parents in prosecuting counterclaim for wrongful death, the application of the collateral estoppel doctrine rested upon the status and financial interest of decedent’s beneficiaries and not upon the identity of the administrator in the two actions; estoppel could not be asserted against the parents on the wrongful death claim unless they could be said to have been a party to or in privity with the administrator in his defense of the contribution claim or unless they were otherwise bound by the judgment on that claim. Gerrard v. Larsen, 517 F.2d 1127, 1975 U.S. App. LEXIS 14529 (8th Cir. N.D. 1975).

Father for Son’s Death.

The father of one who is injured, while in the employ of one who has failed to comply with the Workmen’s Compensation Act, may bring the action. Olson v. Hemsley, 48 N.D. 779, 187 N.W. 147, 1922 N.D. LEXIS 101 (N.D. 1922).

In Whose Name Brought.

An action in favor of an infant for the death of a mother caused by the wrongful act of the defendant should be brought in the name of the infant by the guardian, and not in the name of the guardian himself. Willard v. Mohn, 24 N.D. 390, 139 N.W. 979, 1913 N.D. LEXIS 7 (N.D. 1913).

Surviving wife may institute suit, in her own name, for damages for wrongful death without the necessity of being appointed a general guardian or guardian ad litem for the minor children. Nelson v. Westland Oil Co., 96 F. Supp. 656, 1949 U.S. Dist. LEXIS 1788 (D.N.D. 1949).

Mother or Father.

In the absence of express statutory authority, the meaning of “mother” would not be extended to include grandmother, nor would a person standing in loco parentis be considered a child’s “de facto” or “psychological” father or mother for the purpose of determining who is authorized to bring a wrongful death action. Goodleft v. Gullickson, 556 N.W.2d 303, 1996 N.D. LEXIS 257 (N.D. 1996).

Personal Representative.
—Demand.

A person seeking to bring a wrongful death action as personal representative of a decedent’s estate must have been appointed personal representative when the demand upon a person with higher statutory priority was made. Goodleft v. Gullickson, 556 N.W.2d 303, 1996 N.D. LEXIS 257 (N.D. 1996).

—Substitution.

Personal representative should have been allowed a reasonable time for the substitution of decedent child’s parents as plaintiffs, or their ratification of representative’s action, after determination that representative did not have standing to bring wrongful death action because she failed to make proper demand on persons with higher statutory priority. Goodleft v. Gullickson, 556 N.W.2d 303, 1996 N.D. LEXIS 257 (N.D. 1996).

Purpose of Statute.

This is not a survival statute intended to increase the estate of the deceased, but its purpose is to give a measure of protection to those persons within a fixed degree of relationship to and dependency on the deceased because of actual injury sustained by them by reason of wrongful killing of the deceased. Satterberg v. Minneapolis, St. P. & S. St. M. Ry., 19 N.D. 38, 121 N.W. 70, 1909 N.D. LEXIS 71 (N.D. 1909).

Relationship of Plaintiff to Decedent.

This statute does not require a legal obligation on the part of the deceased toward the survivors to entitle them to maintain the action. Satterberg v. Minneapolis, St. P. & S. St. M. Ry., 19 N.D. 38, 121 N.W. 70, 1909 N.D. LEXIS 71 (N.D. 1909).

Representative Capacity of Plaintiff.

Whoever brings the action does so in a representative capacity for the exclusive benefit of the heirs at law in such shares as the trial judge shall determine. Satterberg v. Minneapolis, St. P. & S. St. M. Ry., 19 N.D. 38, 121 N.W. 70, 1909 N.D. LEXIS 71 (N.D. 1909).

Separate Actions by Parent and Children.

Surviving husband and father who brought action for himself and children for wrongful death of wife and mother was thereby foreclosed from bringing separate action in behalf of children; fact that father was found to be contributorily negligent and thus had no cause of action did not destroy right of recovery in children since contributory negligence of father was not imputed to children as guests in automobile in which fatal collision occurred. Bartholomay v. St. Thomas Lumber Co., 148 N.W.2d 278, 1966 N.D. LEXIS 150 (N.D. 1966).

Settlement Negotiations.

Evidence of efforts to negotiate in good faith over a reasonable period of time proves that a party did not neglect or refuse to pursue a wrongful death action and, consequently, running of the statutory thirty-day time limitation to bring the action after demand to do so would be tolled. Felchle v. Medina Cheese Co., 329 N.W.2d 619, 1983 N.D. LEXIS 235 (N.D. 1983).

Spouses Separated and Contemplating Divorce.

Husband was not disqualified from bringing wrongful death action or compromising claim for wife’s death where husband and wife, who were separated and contemplating divorce, had unresolved questions of property division at time of wife’s death. Patten v. Olson, 265 N.W.2d 688, 1978 N.D. LEXIS 231 (N.D. 1978).

Subrogation.

Where decedent’s dependents claim under the workmen’s compensation fund, the fund is subrogated to employee’s rights and the action is properly instituted in the name of the state. State ex rel. Workmen's Compensation Fund v. Thompson, 73 N.D. 56, 11 N.W.2d 113, 1943 N.D. LEXIS 61 (N.D. 1943).

Who May Not Sue.

If death occurs while decedent is engaged in interstate commerce, then wife could not sue for wrongful death and such action would have to be brought by the personal representative of the deceased. Hein v. Great N. Ry., 34 N.D. 440, 159 N.W. 14, 1916 N.D. LEXIS 53 (N.D. 1916).

Fact that wrongful death incidentally injures an insurer of the life of the person killed creates no cause of action in favor of the insured and against the tort-feasor. State ex rel. Woods v. Hughes Oil Co., 58 N.D. 581, 226 N.W. 586, 1929 N.D. LEXIS 252 (N.D. 1929).

DECISIONS UNDER PRIOR LAW

Father.

Under former statute, father could not bring an action for son’s wrongful death, even though he was son’s sole heir. Harshman v. Northern Pac. Ry., 14 N.D. 69, 103 N.W. 412, 1905 N.D. LEXIS 20 (N.D. 1905).

Personal Representative.

Former statute authorized surviving husband or wife to bring action and, if neither survived, authorized surviving child to bring action; personal representative could bring action only if no one other than legal heirs survived or if spouse or child failed to bring action. Satterberg v. Minneapolis, St. P. & S. St. M. Ry., 19 N.D. 38, 121 N.W. 70, 1909 N.D. LEXIS 71 (N.D. 1909).

Collateral References.

Death 31.

22A Am. Jur. 2d, Death, §§ 78 et seq.

25A C.J.S. Death §§ 46-57.

Beneficiary’s negligence as affecting right of action for wrongful death, 2 A.L.R.2d 785.

Marriage of child as affecting right of recovery by parents in death action, 7 A.L.R.2d 1380.

Assignability of claim for death, 40 A.L.R.2d 500.

For whose benefit action for wrongful death may be maintained upon death of beneficiary, 43 A.L.R.2d 1291.

Capacity of local or foreign personal representative to maintain action for death under foreign statute providing for action by personal representative, 52 A.L.R.2d 1016.

Right of foreign domiciliary, or ancillary, personal representative to maintain an action for death, under statute of forum which provides that actions shall be brought by personal representative, 52 A.L.R.2d 1048.

Adoption: child adopted by another as beneficiary of action or settlement for wrongful death of natural parent, 67 A.L.R.2d 745.

Adoption: action for death of adoptive parent, by or for benefit of adopted or equitably adopted child, 94 A.L.R.2d 1237.

Tort-feasor: fact that tort-feasor is member of class of beneficiaries as affecting right to maintain action for wrongful death, 95 A.L.R.2d 585.

Brothers and sisters of deceased as beneficiaries within state wrongful death statute, 31 A.L.R.3d 379.

Modern status of law as to equitable adoption or adoption by estoppel, 97 A.L.R.3d 347.

Effect of death of beneficiary upon right of action under death statute, 13 A.L.R.4th 1060.

Assignability of proceeds of claim for personal injury or death, 33 A.L.R.4th 82.

Surviving parent’s minority as tolling limitation period on suit for child’s wrongful death, 54 A.L.R.4th 362.

Effect of death of beneficiary, following wrongful death, upon damages, 73 A.L.R.4th 441.

Law Reviews.

North Dakota Supreme Court Review, (Weigel v. Lee, 2008 ND 147, 752 N.W.2d 618 (2008)), see 85 N. Dak. L. Rev. 503 (2009).

32-21-04. Recovery exempt from decedent’s debts.

The amount recovered shall not be liable for the debts of the decedent, but shall inure to the exclusive benefit of the decedent’s heirs at law in such shares as the judge before whom the case is tried shall fix in the order for judgment, and for the purpose of determining such shares, the judge after the trial may make any investigation which the judge deems necessary.

Source:

R.C. 1895, § 5977; R.C. 1899, § 5977; R.C. 1905, § 7689; C.L. 1913, § 8324; R.C. 1943, § 32-2104.

Notes to Decisions

Findings Upheld.

Trial court’s findings that husband, who had been separated from decedent for more than two years, suffered no loss, economic or otherwise, as a result of her death, while decedent’s 11-year-old daughter suffered substantial loss from the death of her mother, upon whom she solely relied for her support and care, and that daughter was not disqualified from receiving a share of the wrongful death damages because her negligent driving of automobile caused her mother’s death, as the sole proximate cause of the accident was negligent entrustment of the automobile to her, was not clearly erroneous. Gorley v. Parizek, 475 N.W.2d 558, 1991 N.D. LEXIS 174 (N.D. 1991).

“Heirs at Law” Defined.

Brothers and sisters are included in the term “heirs at law”. Satterberg v. Minneapolis, St. P. & S. St. M. Ry., 19 N.D. 38, 121 N.W. 70, 1909 N.D. LEXIS 71 (N.D. 1909).

“Heirs at law” as used in this section is to be construed in its technical legal sense as used in the law of intestate succession; it is to be considered the equivalent of “heirs”, since the statute also refers to a “decedent” and thereby excludes persons whose interest is in the nature of an expectancy prior to the death of the deceased. Broderson v. Boehm, 253 N.W.2d 864, 1977 N.D. LEXIS 269 (N.D. 1977).

The “heirs at law” mentioned in this section are not limited to persons named in N.D.C.C. § 32-21-03, but include any persons who may succeed to the property of an intestate; such persons may be collateral heirs, but only when there are no closer legal heirs as determined under the law of intestate succession; therefore, personal representative of deceased twelve-year-old girl, killed with her mother in an automobile accident, was not entitled to recover damages on behalf of the decedent’s younger sisters where her father also survived. Broderson v. Boehm, 253 N.W.2d 864, 1977 N.D. LEXIS 269 (N.D. 1977).

Jurisdiction.

In a mother’s wrongful death suit regarding a daughter’s suicide, the district court had subject matter jurisdiction under 28 U.S.C.S. § 1332(a) because § 1332(c)(2) was inapplicable since the mother did not sue the services provider as the legal representative of the decedent’s estate because mother sued in her capacity as trustee for the decedent’s heirs under North Dakota’s wrongful death statute. Zebley v. Heartland Indus. of Dawson, Inc., 625 F.3d 449, 2010 U.S. App. LEXIS 23417 (8th Cir. N.D. 2010).

Recovery by Children.

Adult children’s action against a doctor and a hospital under the North Dakota Wrongful Death Act, N.D.C.C. ch. 32-21, should not have been dismissed because as children of a decedent, the children were allowed to seek recovery of damages under N.D.C.C. §§ 32-21-03 and 32-21-04, and the non-economic damages requested by the children were permitted under N.D.C.C. § 32-03.2-04. Weigel v. Lee, 2008 ND 147, 752 N.W.2d 618, 2008 N.D. LEXIS 143 (N.D. 2008).

Review of Court’s Findings.

The trial court’s findings relevant to fixing the parties’ share of a wrongful death recovery under this section are factual determinations that will not be overturned on appeal unless they are clearly erroneous. Gorley v. Parizek, 475 N.W.2d 558, 1991 N.D. LEXIS 174 (N.D. 1991).

Unequal Shares.

Decedent’s sister, an invalid unable to work and wholly dependent upon decedent for support, may be entitled to a larger share of recovery than an ablebodied sister who is only partially dependent upon him. Satterberg v. Minneapolis, St. P. & S. St. M. Ry., 19 N.D. 38, 121 N.W. 70, 1909 N.D. LEXIS 71 (N.D. 1909).

Collateral References.

Right of action for wrongful death as subject to claims of creditors, 35 A.L.R.2d 1443.

Effect of death of beneficiary, following wrongful death, upon damages, 73 A.L.R.4th 441.

Law Reviews.

North Dakota Supreme Court Review, (Weigel v. Lee, 2008 ND 147, 752 N.W.2d 618 (2008)), see 85 N. Dak. L. Rev. 503 (2009).

32-21-05. Action not abated by death.

The action shall not abate by the death of the injured party or the tort-feasor. If the plaintiff dies pending the action, the person next in order entitled to bring the action, by order of the court, shall be made plaintiff therein.

Source:

R.C. 1895, § 5978; R.C. 1899, § 5978; R.C. 1905, § 7690; C.L. 1913, § 8325; R.C. 1943, § 32-2105; S.L. 1977, ch. 304, § 2.

Notes to Decisions

Death of Tort-Feasor.

This statute does not authorize the bringing of an action for wrongful death after the death of the tort-feasor where the action had not been commenced before such death. Willard v. Mohn, 24 N.D. 390, 139 N.W. 979, 1913 N.D. LEXIS 7 (N.D. 1913).

Collateral References.

Death 28-30.

22A Am. Jur. 2d, Death, §§ 12, 13.

25A C.J.S. Death, §§ 72-75.

Conflict of laws as to survival or revival of wrongful death actions against estate of personal representative of wrongdoer, 17 A.L.R.2d 690.

Effect of death of beneficiary upon right of action under death statute, 43 A.L.R.2d 1291.

Effect of death of beneficiary upon right of action under death statute, 13 A.L.R.4th 1060.

Effect of death of beneficiary, following wrongful death, upon damages, 73 A.L.R.4th 441.

32-21-06. Compromise of action.

The person entitled to bring the action may compromise the same, or the right thereto, and such compromise shall be binding upon all persons authorized to bring the action or to share in the recovery.

Source:

R.C. 1895, § 5979; R.C. 1899, § 5979; R.C. 1905, § 7691; C.L. 1913, § 8326; R.C. 1943, § 32-2106.

Notes to Decisions

Minor Children’s Rights.

Where surviving wife brings suit in her own name for wrongful death damages, her compromise of the action binds all minor children although she has not been appointed general guardian or guardian ad litem. Nelson v. Westland Oil Co., 96 F. Supp. 656, 1949 U.S. Dist. LEXIS 1788 (D.N.D. 1949).

Spouse’s Right to Compromise.

Spouse who is not disqualified from bringing a wrongful death action has an absolute right, in the absence of fraud, to settle wrongful death claim for death of his spouse. Patten v. Olson, 265 N.W.2d 688, 1978 N.D. LEXIS 231 (N.D. 1978).

Collateral References.

Death 25.

22A Am. Jur. 2d, Death, §§ 156-168.

25A C.J.S. Death, §§ 83-87.

Specific performance of compromise and settlement agreement, 48 A.L.R.2d 1211.

CHAPTER 32-22 Habeas Corpus

32-22-01. Persons restrained may prosecute the writ.

Every person imprisoned or restrained of the person’s liberty under any pretense whatever may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint and thereby, except in the cases specified in section 32-22-02, obtain relief from such imprisonment or restraint if it is unlawful.

Source:

C. Crim. P. 1877, § 671; R.C. 1895, § 8648; R.C. 1899, § 8648; R.C. 1905, § 10468; C.L. 1913, § 11359; R.C. 1943, § 32-2201.

Cross-References.

Criminal Procedure Rules inapplicable, see N.D.R.Crim.P. 1(b)(1).

Suspension of privilege of habeas corpus, see N.D. Const. Art. I, § 14.

Notes to Decisions

Appealability of Order.

An order denying an application for a writ of habeas corpus is not appealable. Carruth v. Taylor, 8 N.D. 166, 77 N.W. 617, 1898 N.D. LEXIS 41 (N.D. 1898); Ex parte Simonson, 54 N.D. 164, 209 N.W. 211, 1926 N.D. LEXIS 129 (N.D. 1926).

Order quashing writ of habeas corpus and awarding custody of child is a final order in special proceedings, affecting substantial rights, and is appealable. Larson v. Dutton, 40 N.D. 230, 168 N.W. 625, 1918 N.D. LEXIS 74 (N.D. 1918).

Challenges to Deprivation of Good Time Credits.

Where a federal habeas petitioner challenged a deprivation of good time credits, a potential state remedy under N.D.C.C. § 32-22-01 was yet to be exhausted where petitioner failed to appeal the denial of his state habeas petition by the district court to the North Dakota Supreme Court and did not bring an original habeas petition to the North Dakota Supreme Court pursuant to the authority conferred by N.D. Const. Art. VI, § 2, a remedy for which there did not appear to be a time limit; the North Dakota Supreme Court could have disagreed with the respondent’s argument that N.D.C.C. § 32-22-01 barred consideration of the petitioner’s claims. Alex v. Schuetzle, 2006 U.S. Dist. LEXIS 67969 (D.N.D. June 5, 2006).

Custody of Child.

Habeas corpus proceeding to determine custody of child is in the nature of an equitable action and is to be determined upon equitable principles by what appears to be for the best interests of the child. In re Custody of Wagner, 84 N.W.2d 587, 1957 N.D. LEXIS 138 (N.D. 1957).

The objectives and procedures used in a writ of habeas corpus, unless substantially modified, are unrealistic and inappropriate for determining the custody of a child, especially because of changed circumstances where the best interests of the child are involved; the better procedure for litigant seeking custody of a child because of changed circumstances is to initiate an action or proceeding by using a complaint, petition, or application stating the facts and the nature of the matter and the remedial relief sought, or by a motion if the parties are the same as those in the divorce decree or judgment, and requesting an evidentiary hearing whenever the evidence is in dispute. Mansukhani v. Pailing, 300 N.W.2d 847, 1980 N.D. LEXIS 321 (N.D. 1980), cert. denied, 454 U.S. 818, 102 S. Ct. 98, 70 L. Ed. 2d 88, 1981 U.S. LEXIS 3139 (U.S. 1981).

Where divorced father to whom custody of the children had been granted was killed, trial court order awarding divorced mother custody of the children in a habeas corpus proceeding without an evidentiary hearing was vacated and remanded for an evidentiary hearing as to the best interest and welfare of the children where the writ of habeas corpus was not used to free the children unlawfully detained of their liberty or to enforce a decree or judgment, but was used in an effort to obtain custody of the children because of changed circumstances, and the grandparents, who were also wanting custody, made an adequate request before the trial court to convert the habeas corpus proceeding into an evidentiary hearing. Mansukhani v. Pailing, 300 N.W.2d 847, 1980 N.D. LEXIS 321 (N.D. 1980), cert. denied, 454 U.S. 818, 102 S. Ct. 98, 70 L. Ed. 2d 88, 1981 U.S. LEXIS 3139 (U.S. 1981).

Persons on Bail.

Persons accused of crime but discharged on bail are not restrained of their liberty so as to be entitled to discharge on habeas corpus. Green v. Wiese, 78 N.W.2d 776, 1956 N.D. LEXIS 147 (N.D. 1956).

Post-Conviction Relief Replaces Habeas Corpus.

Uniform Post-Conviction Procedure Act was intended to replace the habeas corpus statutes insofar as persons arrested for or convicted of criminal violations are concerned; the act does not unconstitutionally restrict the right to habeas corpus since the post-conviction statutes are not less favorable to the accused than the habeas corpus provisions; legislature’s failure to repeal habeas corpus statutes was attributed to fact they remained applicable to civil matters. McGuire v. Warden of State Farm (State Penitentiary), 229 N.W.2d 211, 1975 N.D. LEXIS 194 (N.D. 1975).

Without expressly stated circumstances warranting an exception, supreme court will decline to hear applications for habeas corpus which properly belong under post-conviction remedies. Smith v. Satran, 295 N.W.2d 118, 1980 N.D. LEXIS 267 (N.D. 1980).

Statute of Limitations.

The wrongful death statute creates a separate and distinct cause of action for the benefit of the heirs which accrues upon the death of the decedent. Matthews v. Celotex Corp., 569 F. Supp. 1539, 1983 U.S. Dist. LEXIS 13988 (D.N.D. 1983).

Collateral References.

Habeas Corpus 1-39.

39 Am. Jur. 2d, Habeas Corpus, §§ 1 et seq.

39 C.J.S. Habeas Corpus, §§ 1 et seq.

Former jeopardy as affecting jurisdiction of court to enter judgment, 8 A.L.R.2d 285.

Child custody: nonresidence as affecting one’s right to custody of child in habeas corpus proceedings, 15 A.L.R.2d 432.

Appeal, habeas corpus on ground of deprivation of right to, 19 A.L.R.2d 789.

Sanity: existence of other remedy as affecting habeas corpus on grounds of restoration to sanity of one confined as an incompetent other than in connection with crime, 21 A.L.R.2d 1004.

Sexual psychopaths, habeas corpus to test validity of confinement under statutes relating to, 24 A.L.R.2d 350, 376.

Insanity of accused at time of commission of offenses [not raised at trial] as ground for habeas corpus after conviction, 29 A.L.R.2d 703.

Charge: determination whether crime is charged, 40 A.L.R.2d 1151.

Speedy trial: waiver or loss of accused’s right to speedy trial as affecting right to habeas corpus, 57 A.L.R.2d 302, 339.

Child custody provisions of divorce or separation decree as subject to modification on habeas corpus, 4 A.L.R.3d 1277.

Child support: court’s power in habeas corpus proceedings relating to custody of child to adjudicate questions as to child’s support, 17 A.L.R.3d 764.

Extradition: discharge on habeas corpus of one held in extradition proceedings as precluding subsequent extradition proceedings, 33 A.L.R.3d 1443.

When is a person in custody of governmental authorities for purpose of exercise of state remedy of habeas corpus—modern cases, 26 A.L.R.4th 455.

Relief available for violation of right to counsel at sentencing in state criminal trial, 65 A.L.R.4th 183.

Review by federal civil courts of court-martial convictions—modern cases, 95 A.L.R. Fed. 472.

32-22-02. Who not entitled to relief.

The person in whose behalf the application is made is not entitled to relief from imprisonment or restraint under a writ of habeas corpus, if the time during which such person may be detained legally in custody has not expired, whenever it appears:

  1. That the person is detained in custody by virtue of process issued by any court or judge of the United States in a case where such court or judge has exclusive jurisdiction; or
  2. Except as provided in section 32-22-17, that the person is detained in custody by virtue of the final order or judgment of any competent court of criminal jurisdiction or of any process issued upon such order or judgment.

Source:

R.C. 1895, § 8649; R.C. 1899, § 8649; R.C. 1905, § 10469; C.L. 1913, § 11360; R.C. 1943, § 32-2202.

Notes to Decisions

Discharge from Bail.

The acceptance of an improper bail bond by the trial court does not entitle one at liberty pending an appeal to a discharge on habeas corpus. Cook v. State, 54 N.D. 178, 208 N.W. 977, 1926 N.D. LEXIS 131 (N.D. 1926).

Jurisdiction.

Habeas corpus cannot be used for the purpose of reviewing the correctness of acts of courts or officers who acted within their jurisdiction, but inquiry is limited to questions of jurisdiction. State ex rel. Smith v. Lee, 53 N.D. 86, 205 N.W. 314, 1925 N.D. LEXIS 67 (N.D. 1925); Cook v. State, 54 N.D. 178, 208 N.W. 977, 1926 N.D. LEXIS 131 (N.D. 1926); State ex rel. Hagen v. Overby, 54 N.D. 732, 210 N.W. 652, 1926 N.D. LEXIS 79 (N.D. 1926); Reichert v. Turner, 62 N.D. 152, 242 N.W. 308, 1932 N.D. LEXIS 160 (N.D. 1932); Ryan v. Nygaard, 70 N.D. 687, 297 N.W. 694, 1941 N.D. LEXIS 218 (N.D. 1941); MAZAKAHOMNI v. STATE, 75 N.D. 73, 25 N.W.2d 772, 1947 N.D. LEXIS 48 (N.D. 1947); State ex rel. Johnson v. Broderick, 75 N.D. 340, 27 N.W.2d 849, 1947 N.D. LEXIS 72 (N.D. 1947); Davidson v. Nygaard, 78 N.D. 141, 48 N.W.2d 578, 1951 N.D. LEXIS 80 (N.D. 1951); Green v. Wiese, 78 N.W.2d 776, 1956 N.D. LEXIS 147 (N.D. 1956).

Collateral References.

Habeas Corpus 38.

39 Am. Jur. 2d, Habeas Corpus, §§ 13-25.

39 C.J.S. Habeas Corpus, § 217.

Former jeopardy as ground for habeas corpus after conviction, 8 A.L.R.2d 285.

Contempt: habeas corpus to review commitment for contempt for failure to obey court order or decree either beyond power or jurisdiction of court or merely erroneous, 12 A.L.R.2d 1059.

Appeal, habeas corpus on ground of deprivation of right to, 19 A.L.R.2d 789.

Sexual psychopaths, habeas corpus to test validity of confinement under statutes relating to, 24 A.L.R.2d 350, 376.

Insanity of accused at time of commission of offense [not raised at trial] as ground for habeas corpus after conviction, 29 A.L.R.2d 703.

Determination whether crime is charged, 40 A.L.R.2d 1151.

Service of process: attack, by petition for writ of habeas corpus, on personal service as having been obtained by fraud or trickery, 98 A.L.R.2d 551, 600.

When is a person in custody of governmental authorities for purpose of exercise of state remedy of habeas corpus—modern cases, 26 A.L.R.4th 455.

Relief available for violation of right to counsel at sentencing in state criminal trial, 65 A.L.R.4th 183.

Review by federal civil courts of court-martial convictions—modern cases, 95 A.L.R. Fed. 472.

32-22-03. Application for writ — Contents — Verification.

Application for the writ must be made by petition signed either by the person for whose relief it is intended or by some person in that person’s behalf, and must specify:

  1. That the person in whose behalf the writ is applied for is imprisoned or restrained of the person’s liberty, the officer or person by whom the person is so confined or restrained, and the place where, naming all the parties if they are known, or describing them if they are not known.
  2. The cause or pretense of such confinement or restraint according to the knowledge or belief of the party verifying the petition.
  3. If the confinement or restraint is by virtue of any warrant, order, or process, a copy thereof shall be annexed, or it shall be averred because such person was removed or concealed before application, a demand of such copy could not be made, or that such demand was made and the legal fees therefor tendered to the officer or person having such person in custody, and that such copy was refused.
  4. If the imprisonment is alleged to be illegal, the petition shall state in what the illegality consists.

The petition must be verified by the oath or affirmation of the person making the application.

Source:

C. Crim. P. 1877, § 672; R.C. 1895, § 8650; R.C. 1899, § 8650; R.C. 1905, § 10470; C.L. 1913, § 11361; R.C. 1943, § 32-2203.

Notes to Decisions

Facts to Be Pled.

A petition in habeas corpus must plead facts, and not legal conclusions. State ex rel. Swanson v. Lee, 53 N.D. 427, 206 N.W. 417, 1925 N.D. LEXIS 99 (N.D. 1925).

Failure to Raise Issue.

Supreme court will not consider questions which were raised in counsel’s argument, but which had not previously been set forth in petition as basis for writ. Kist v. Butts, 71 N.D. 436, 1 N.W.2d 612, 1942 N.D. LEXIS 76 (N.D. 1942).

Restraint of Prisoner.

Petition must allege that petitioner is imprisoned or restrained of his liberty. Green v. Wiese, 78 N.W.2d 776, 1956 N.D. LEXIS 147 (N.D. 1956).

State As Party.

Good practice requires that the state be made a party in all papers concerned with habeas corpus proceeding. Carruth v. Taylor, 8 N.D. 166, 77 N.W. 617, 1898 N.D. LEXIS 41 (N.D. 1898).

Collateral References.

Habeas Corpus 52-57.

39 Am. Jur. 2d, Habeas Corpus, §§ 155-165.

39A C.J.S. Habeas Corpus, §§ 288-295.

32-22-04. By what court application granted.

The writ of habeas corpus must be granted, issued, and made returnable as hereinafter stated:

  1. The writ must be granted by the supreme court, or any judge thereof, upon petition by or on behalf of any person restrained of the person’s liberty within this state. When granted by the court, it, in all cases, shall be issued out of and under the seal of the supreme court, and may be made returnable, either before the supreme court, or before the district court or any judge of the district court; or
  2. The writ may be granted, issued, and determined by the district courts and the judges thereof upon petition by or on behalf of any person restrained of the person’s liberty in their respective districts.

When application is made to the supreme court, or to a judge thereof, proof by the oath of the person applying or other sufficient evidence shall be required that the judge of the district court having jurisdiction by the provisions of subsection 2 is absent from the judge’s district or has refused to grant such writ, or for some cause to be specially set forth, is incapable of acting, and if such proof is not produced the application shall be denied.

Source:

C. Crim. P. 1877, § 689; R.C. 1895, § 8651; S.L. 1897, ch. 85, § 1; R.C. 1899, § 8651; R.C. 1905, § 10471; C.L. 1913, § 11362; R.C. 1943, § 32-2204.

Notes to Decisions

Application to District Court.

A district court, or the judge thereof, can grant, issue, and determine the writ only upon the petition of a party confined in that particular district. Carruth v. Taylor, 8 N.D. 166, 77 N.W. 617, 1898 N.D. LEXIS 41 (N.D. 1898); Larson v. Dutton, 40 N.D. 230, 168 N.W. 625, 1918 N.D. LEXIS 74 (N.D. 1918).

Application to Supreme Court.

In all cases where the petitioner has been remanded to prison by the district court, petitioner may thereafter present his application for the writ to the supreme court. Carruth v. Taylor, 8 N.D. 166, 77 N.W. 617, 1898 N.D. LEXIS 41 (N.D. 1898).

Post-Conviction Relief Replaces Habeas Corpus.

For persons arrested for or convicted of violating a criminal law, post-conviction relief has superseded habeas corpus as a remedy in most situations; without expressly stated circumstances warranting an exception, supreme court will decline to hear applications for habeas corpus which properly belong under post-conviction remedies. Smith v. Satran, 295 N.W.2d 118, 1980 N.D. LEXIS 267 (N.D. 1980).

Collateral References.

Habeas Corpus 40-47.

39 Am. Jur. 2d, Habeas Corpus, §§ 155 et seq.

39 C.J.S. Habeas Corpus, §§ 237-248.

Jurisdiction of habeas corpus proceedings for custody of child having legal domicile in another state, 4 A.L.R.2d 7.

32-22-05. When court must grant the writ.

The court authorized to grant the writ to whom a petition therefor is presented, if it appears that the writ ought to issue, must grant the same without delay, and the writ shall not be denied for any informality in the petition or for any want of matters of substance, if the same can be supplied, and the court to whom application is made, must point out the matters wanting and direct the manner of supplying the same.

Source:

R.C. 1895, § 8652; R.C. 1899, § 8652; R.C. 1905, § 10472; C.L. 1913, § 11363; R.C. 1943, § 32-2205.

32-22-06. Application to supreme court for writ of habeas corpus.

When, upon application to the supreme court for a writ of habeas corpus, it is apparent that no necessity exists for its immediate issuance, and a district court has entertained an application for the writ, and, upon hearing, quashed it, the supreme court will require all the papers, including the application and supporting affidavits, the return and supporting affidavits, and the order of such lower court, to accompany the application made to said court. In emergency cases, the foregoing requirement may be waived.

Source:

Supreme Court Rule No. 28; R.C. 1943, § 32-2206.

Notes to Decisions

Appeals.

District court order denying a writ of habeas corpus is not appealable to supreme court; involuntary committed mental patient’s proper procedure for securing a writ of habeas corpus from the supreme court is to file an original application with such court. In Interest of Klein, 325 N.W.2d 227, 1982 N.D. LEXIS 349 (N.D. 1982).

32-22-07. Direction of writ.

The writ must be directed to the person having custody of or restraining the person on whose behalf the application is made, and must command that person to have the person in custody or restraint personally appear before the court before whom the writ is returnable, at a place therein specified, immediately or at some specified time, regard being had to the circumstances and the distance to be traveled.

Source:

R.C. 1895, § 8653; S.L. 1897, ch. 85, § 2; R.C. 1899, § 8653; R.C. 1905, § 10473; C.L. 1913, § 11364; R.C. 1943, § 32-2207.

32-22-08. Writ of habeas corpus — Form.

Every writ of habeas corpus issued under the provisions of this chapter shall be in substantially the following form:

State of North Dakota ) County of ss. The state of North Dakota to the sheriff of etc. (or to ): You are hereby commanded to have by you imprisoned and detained, as is alleged, together with the time and cause of such imprisonment and detention, by whatever name the said shall be called or charged, before , judge of the district court, (or before the district or supreme court, as the case may be), at (naming the place), on (naming the date), (or immediately upon the receipt of this writ), to do and receive what shall then and there be considered concerning the said , and have you then and there this writ. Witness, etc.

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Such writ must be endorsed “By the Habeas Corpus Act”, and if issued by the court, it shall be under the seal of the court, and if by the judge, it shall be under the judge’s hand.

Source:

R.C. 1895, § 8653; S.L. 1897, ch. 85, § 2; R.C. 1899, § 8653; R.C. 1905, § 10473; C.L. 1913, § 11364; R.C. 1943, § 32-2208.

Collateral References.

Habeas Corpus 65.

39 Am. Jur. 2d, Habeas Corpus, §§ 166-170.

39A C.J.S. Habeas Corpus, §§ 306, 307.

32-22-09. Manner of serving the writ.

Whenever the writ is directed to the sheriff or other ministerial officer of the court out of which it is issued, it must be delivered by the clerk or by such person as it may be entrusted to, without delay, as other writs are delivered to such sheriff or other officer for service, or it may be left with the jailer, keeper, or other person under such sheriff or other officer in charge of and at the jail or place where the person seeking the writ may be imprisoned or restrained. If it is directed to any other person, it may be delivered to the sheriff or sheriff’s deputy and be by the sheriff or sheriff’s deputy served upon such person by delivering the same to such person without delay. If the person to whom the writ is directed cannot be found or refuses admittance to the officer or person serving or delivering such writ, it may be served or delivered by leaving it at the residence of the person to whom it is directed, or by affixing it to some conspicuous place on the outside either of that person’s dwelling house or of the place where the party is confined or under restraint. In any case the court issuing the writ, at its discretion, may authorize any person to serve and deliver it by an entry signed by the judge thereon to the following effect: “I hereby authorize _____________________________________ to serve the within writ”, and service made by such person in the manner designated in this section shall be due and lawful service.

Source:

R.C. 1895, § 8654; R.C. 1899, § 8654; R.C. 1905, § 10474; C.L. 1913, § 11365; R.C. 1943, § 32-2209.

Collateral References.

Habeas Corpus 67.

39 Am. Jur. 2d, Habeas Corpus, §§ 168-170.

39A C.J.S. Habeas Corpus, § 274.

32-22-10. Penalty if officer refuses to execute and return writ.

If the person to whom the writ is directed refuses, after service, to obey the same, the court, upon affidavit stating such facts, must issue an attachment against such person, directed to the sheriff or coroner, commanding the sheriff or coroner forthwith to arrest such person and bring such person immediately before such court, and upon being so brought that person must be committed to the jail of the county until that person makes due return to such writ or is otherwise legally discharged. The person disobeying such writ also shall forfeit to the person imprisoned or restrained a sum not exceeding five hundred dollars to be recovered in a civil action by the person restrained. If the person disobeying the writ is an officer, that officer shall be incapable of holding or executing that office.

Source:

C. Crim. P. 1877, § 681; R.C. 1895, § 8655; R.C. 1899, § 8655; R.C. 1905, § 10475; C.L. 1913, § 11366; R.C. 1943, § 32-2210; S.L. 1975, ch. 106, § 346.

32-22-11. What the return must set forth.

The person upon whom the writ is served must state in the person’s return, plainly and unequivocally:

  1. Whether that person has or has not the party in custody or under power or restraint.
  2. If that person has the party in custody or power or under restraint, that person must state the authority and cause of such imprisonment or restraint.
  3. If the party is detained by virtue of any writ, warrant, or other written authority, a copy thereof must be annexed to the return and the original produced and exhibited to the court on the hearing of such return.
  4. If the person upon whom the writ is served had the party in the person’s custody or power or under the person’s restraint, at any time prior or subsequent to the date of the writ of habeas corpus, but has transferred such custody or restraint to another, the return must state particularly to whom, at what time and place, for what cause, and by what authority such transfer took place.
  5. The return must be signed by the person making the same, and, except when such person is a sworn public officer and makes such return in an official capacity, it must be verified by the officer’s oath or affirmation.

Source:

R.C. 1895, § 8656; R.C. 1899, § 8656; R.C. 1905, § 10476; C.L. 1913, § 11367; R.C. 1943, § 32-2211.

Collateral References.

Habeas Corpus 73-81.

39 Am. Jur. 2d, Habeas Corpus, §§ 171 et seq.

39A C.J.S. Habeas Corpus, §§ 269, 310-315.

32-22-12. Party restrained must be brought into court — Exception.

The person to whom the writ is directed, if it is served, must bring the party in custody or under restraint, according to the command of the writ, except in cases specified in section 32-22-13.

Source:

R.C. 1895, § 8657; R.C. 1899, § 8657; R.C. 1905, § 10477; C.L. 1913, § 11368; R.C. 1943, § 32-2212.

32-22-13. When party need not be brought.

When from sickness or infirmity of the person directed to be produced such person cannot be brought before the court without danger, the person in whose power or custody such person is may state that fact in the return to the writ, verifying the same by affidavit. If the court is satisfied of the truth of such return and the return to the writ is otherwise sufficient, the court may proceed to decide on such return and to dispose of the matter as if such party had been produced on the writ, or the hearing thereof may be adjourned until such party can be produced.

Source:

R.C. 1895, § 8658; R.C. 1899, § 8658; R.C. 1905, § 10478; C.L. 1913, § 11369; R.C. 1943, § 32-2213.

32-22-14. When hearing must be had.

The court before whom the writ is returned, immediately after the return or within five days thereafter, must proceed to hear and examine the return, and such other matters as may be properly submitted for its consideration.

Source:

R.C. 1895, § 8659; R.C. 1899, § 8659; R.C. 1905, § 10479; C.L. 1913, § 11370; R.C. 1943, § 32-2214.

Collateral References.

Habeas Corpus 90.

39 Am. Jur. 2d, Habeas Corpus, §§ 178-187.

39A C.J.S. Habeas Corpus, §§ 276-279, 344, 345, 348-358.

32-22-15. Return may be controverted — Proofs.

The party brought before the court on the return of the writ may deny or controvert any of the material facts or matters set forth in the return, or except to the sufficiency thereof, or allege any fact to show either that the imprisonment or detention is unlawful or that the party is entitled to be discharged. The court thereupon must proceed in a summary way to hear such proof as may be produced against such imprisonment or detention, or in favor of the same, and to dispose of such party as the justice of the case may require, and has full power and authority to require and compel the attendance of witnesses, by process of subpoena and attachment, and to do and perform all other acts and things necessary to a full and fair hearing and determination of the case. The court may allow the return to be amended according to the facts of the case, whenever it may be deemed necessary.

Source:

R.C. 1895, § 8660; R.C. 1899, § 8660; R.C. 1905, § 10480; C.L. 1913, § 11371; R.C. 1943, § 32-2215.

32-22-16. When person restrained must be discharged.

If no legal cause is shown for the imprisonment or restraint or for the continuation thereof, the court must discharge the party from the custody or restraint under which the party is held.

Source:

R.C. 1895, § 8661; R.C. 1899, § 8661; R.C. 1905, § 10481; C.L. 1913, § 11372; R.C. 1943, § 32-2216.

32-22-17. Causes for discharge of person restrained.

If it appears on the return of the writ that the party is in custody by virtue of process from any court of this state, or any judge or officer thereof, such person may be discharged in any of the following cases, subject to the restrictions of section 32-22-02:

  1. When the jurisdiction of such court or officer has been exceeded.
  2. When the imprisonment was at first lawful, but by some act, omission, or event which has taken place afterward, the party has become entitled to a discharge.
  3. When the process is defective in some matter of substance required by law rendering such process void.
  4. When the process, though regular in form, has been issued in a case not allowed by law.
  5. When the person having the custody of the party is not the person allowed by law to detain the party.
  6. When the process is not authorized by any order or judgment of any court nor by any provisions of law.
  7. When a party has been committed on a criminal charge without reasonable or probable cause.
  8. When the process appears to have been obtained by false pretense or bribery.

Source:

C. Crim. P. 1877, § 673; R.C. 1895, § 8662; R.C. 1899, § 8662; R.C. 1905, § 10482; C.L. 1913, § 11373; R.C. 1943, § 32-2217.

Notes to Decisions

Arrest on Reservation.

Where Indian was arrested on reservation without warrant by deputy sheriff of adjacent county for felony committed in that county and no contention was made that felony was not committed or that officer did not have reasonable grounds to believe that Indian had committed it, arrest did not deprive Indian of rights under constitution or laws or treaties of United States, and thus he was not entitled to habeas corpus; failure to take Indian before nearest magistrate in county where arrest was made, but rather taking him before magistrate of county in which offense was triable, was not prejudicial and did not entitle Indian to habeas corpus. Fournier v. Roed, 161 N.W.2d 458, 1968 N.D. LEXIS 85 (N.D. 1968).

Contempt.

Petitioner who has perfected an appeal from a contempt order is not entitled to a release on habeas corpus. State ex rel. Mears v. Barnes, 5 N.D. 350, 65 N.W. 688, 1895 N.D. LEXIS 38 (N.D. 1895).

Habeas corpus would not issue to release husband who was incarcerated for civil contempt for failure to pay court-ordered alimony where trial court found him able to pay, no transcripts of trial court testimony were presented as part of record on appeal, and husband’s affidavit was insufficient to show inability to pay the alimony. Thorlakson v. Wells, 207 N.W.2d 326, 1973 N.D. LEXIS 158 (N.D. 1973).

Incarceration of petitioner for civil contempt for failure to pay court-ordered alimony he claimed to be unable to pay, and his assertion of statutory grounds under this section, were sufficient bases for petition for writ of habeas corpus. Thorlakson v. Wells, 207 N.W.2d 326, 1973 N.D. LEXIS 158 (N.D. 1973).

Due Process.

Fact that assigned counsel permitted accused to plead guilty to first degree murder did not establish that accused was denied due process despite allegation that counsel did not spend sufficient time with his client and fact that counsel stated to court, just before accused signed confession in open court, that accused had told him he did not intend to commit the crime and was drunk at time of its commission. MAZAKAHOMNI v. STATE, 75 N.D. 73, 25 N.W.2d 772, 1947 N.D. LEXIS 48 (N.D. 1947).

Where indigent defendant claimed his conviction was void because of his court-appointed attorney’s failure to subpoena alleged material witness, defendant had the burden of showing that such failure denied him a fair trial and, since his counsel’s decision was a matter of trial strategy, the court would not superimpose its judgment on such tactical decision. Smith v. Woodley, 164 N.W.2d 594, 1969 N.D. LEXIS 121 (N.D. 1969).

Where trial court, before arraignment, advised accused that crime with which he was charged was punishable by imprisonment in state penitentiary, that he was entitled to jury trial, and that he was entitled at all stages of proceedings to advice of lawyer whom court would provide if defendant was without funds, and defendant informed court that he did not desire lawyer and waived jury trial, he did so intelligently and understandingly and his assertion that his conviction, judgment, sentence, and commitment were defective and void under this section was without merit. In re Stone, 171 N.W.2d 119, 1969 N.D. LEXIS 88 (N.D. 1969), cert. denied, 397 U.S. 912, 90 S. Ct. 912, 25 L. Ed. 2d 93, 1970 U.S. LEXIS 3002 (U.S. 1970).

Where appellant contends denial of due process because he was not given adequate notice of the time and date of his trial, appellant must suffer the consequences of any lack of evidence in the record when he made no attempt to supplement the record. State v. Lawyer, 395 N.W.2d 153, 1986 N.D. LEXIS 427 (N.D. 1986).

Facts Not Reviewable.

A defendant in a criminal case can never secure his release on habeas corpus by showing that there was no evidence of his guilt to sustain the judgment of conviction. State ex rel. Mears v. Barnes, 5 N.D. 350, 65 N.W. 688, 1895 N.D. LEXIS 38 (N.D. 1895).

Jurisdiction.

Where process is regular and valid upon its face, the inquiry will be confined to jurisdictional matter, which includes the power of the court or magistrate to make the commitment. State ex rel. Styles v. Beaverstad, 12 N.D. 527, 97 N.W. 548, 1903 N.D. LEXIS 53 (N.D. 1903).

Before writ is available as a means of release from confinement, it must appear that the court issuing the process, or the confining officer, has acted entirely without jurisdiction. State v. Floyd, 22 N.D. 183, 132 N.W. 662, 1911 N.D. LEXIS 20 (N.D. 1911); State ex rel. Smith v. Lee, 53 N.D. 86, 205 N.W. 314, 1925 N.D. LEXIS 67 (N.D. 1925).

Habeas corpus will lie only in case judgment under which prisoner is detained is shown to be void for want of jurisdiction in court pronouncing sentence, either because it was absent at the beginning or because it was lost in the course of the proceedings. State ex rel. Hagen v. Overby, 54 N.D. 732, 210 N.W. 652, 1926 N.D. LEXIS 79 (N.D. 1926).

Jurisdiction is the power to hear and determine a cause, and it does not relate to the rights of the parties, but to the power of the court. Reichert v. Turner, 62 N.D. 152, 242 N.W. 308, 1932 N.D. LEXIS 160 (N.D. 1932); Ryan v. Nygaard, 70 N.D. 687, 297 N.W. 694, 1941 N.D. LEXIS 218 (N.D. 1941).

Jurisdiction does not depend upon the correctness of the decision made. Reichert v. Turner, 62 N.D. 152, 242 N.W. 308, 1932 N.D. LEXIS 160 (N.D. 1932).

When a court has jurisdiction of a cause and of the parties, it does not lose it because it makes a mistake in determining either the facts or the law, or both. Reichert v. Turner, 62 N.D. 152, 242 N.W. 308, 1932 N.D. LEXIS 160 (N.D. 1932).

If trial judge erred in construing the legal meaning of a plea, it was an error committed in the exercise of jurisdiction and one which does not present a jurisdictional defect that is remediable by the writ of habeas corpus. State ex rel. Johnson v. Broderick, 75 N.D. 340, 27 N.W.2d 849, 1947 N.D. LEXIS 72 (N.D. 1947).

Plea Defective.

Fact that defendant’s plea of guilty to murder charge did not designate degree to which he pleaded guilty cannot be reviewed on habeas corpus. State ex rel. Smith v. Lee, 53 N.D. 86, 205 N.W. 314, 1925 N.D. LEXIS 67 (N.D. 1925).

Where court failed to obtain a guilty plea from defendant at arraignment as a result of confusion caused by attempt to arraign five defendants at the same time, defendant’s resultant conviction was a nullity and void. State v. Wester, 204 N.W.2d 109, 1973 N.D. LEXIS 182 (N.D. 1973).

Reasonable or Probable Cause.

If one is committed upon a criminal charge without reasonable or probable cause, he may be released on habeas corpus, but the court will look into the evidence upon the preliminary examination only far enough to see that there was competent evidence before the magistrate tending to show that an offense was committed, and that there was cause to believe that the accused committed it. State ex rel. Styles v. Beaverstad, 12 N.D. 527, 97 N.W. 548, 1903 N.D. LEXIS 53 (N.D. 1903).

Reviewing court can discharge a person committed on a criminal charge only when such party has been committed without reasonable or probable cause. State ex rel. Germain v. Ross, 39 N.D. 630, 170 N.W. 121, 1918 N.D. LEXIS 62 (N.D. 1918).

If a justice of the peace orders a defendant detained for an offense which is not a crime, defendant is entitled to be released upon habeas corpus. Brissman v. Thistlethwaite, 49 N.D. 417, 192 N.W. 85, 1922 N.D. LEXIS 72 (N.D. 1922).

Collateral References.

Habeas Corpus 1-39.

39 Am. Jur. 2d, Habeas Corpus, §§ 26-92.

39 C.J.S. Habeas Corpus, §§ 56 et seq.

Contempt: habeas corpus to review commitment for contempt for failure to obey court order or decree of court either beyond power or jurisdiction of court or merely erroneous, 12 A.L.R.2d 1059.

Appeal, habeas corpus on ground of deprivation of right to, 19 A.L.R.2d 789.

Sexual psychopaths, habeas corpus to test validity of confinement under statutes relating to, 24 A.L.R.2d 350, 376.

Charge: determination whether crime is charged, 40 A.L.R.2d 1151.

Speedy trial: waiver or loss of accused’s right to speedy trial as affecting right to habeas corpus, 57 A.L.R.2d 302, 339.

Service of process: attack, by petition for writ of habeas corpus, on personal service as having been obtained by fraud or trickery, 98 A.L.R.2d 551, 600.

Relief available for violation of right to counsel at sentencing in state criminal trial, 65 A.L.R.4th 183.

32-22-18. Informal commitment from district judge.

If the person is committed to prison, or is in custody of an officer on a criminal charge, by virtue of a warrant of commitment of a district judge, the person must not be discharged on the ground of any mere defect of form in the warrant of commitment.

Source:

C. Crim. P. 1877, § 673; R.C. 1895, § 8663; R.C. 1899, § 8663; R.C. 1905, § 10483; C.L. 1913, § 11374; R.C. 1943, § 32-2218; S.L. 1981, ch. 320, § 83; S.L. 1991, ch. 326, § 135.

32-22-19. Procedure when person appears to be guilty.

If it appears to the court, by affidavit or otherwise, or upon inspection of the process or warrant of commitment and proceedings as may be shown to the court, that the party is guilty of a criminal offense or ought not to be discharged, such court, although the charge is defectively or not substantially set forth in such process or warrant of commitment, must cause the complainant or other necessary witness to be subpoenaed to attend at such time as ordered, to testify before the court, and upon the examination the judge may discharge such party, admit the party to bail if the offense is bailable, or recommit the party to custody, as may be just and legal.

Source:

R.C. 1895, § 8664; R.C. 1899, § 8664; R.C. 1905, § 10484; C.L. 1913, § 11375; R.C. 1943, § 32-2219.

Notes to Decisions

Unwarranted Adjournment of Preliminary Examination.

A defendant who is aggrieved by the unwarranted adjournment of his hearing upon preliminary examination, upon habeas corpus may either secure his discharge or a speedy examination. State v. Foster, 14 N.D. 561, 105 N.W. 938, 1905 N.D. LEXIS 90 (N.D. 1905).

32-22-20. Habeas corpus to give bail.

Whenever a person is imprisoned or detained in custody on a criminal charge, for want of bail, such person is entitled to a writ of habeas corpus for the purpose of giving bail, upon averring that fact in such person’s petition, without alleging that the person is confined illegally. Any judge in or out of the court in which the judge is authorized to act may take an undertaking of bail from any person who has been committed on a criminal charge, when brought before the judge on a writ of habeas corpus, as in other cases, if the offense is bailable, and file the undertaking in the proper court.

Source:

R.C. 1895, § 8665; R.C. 1899, § 8665; R.C. 1905, § 10485; C.L. 1913, § 11376; R.C. 1943, § 32-2220.

Notes to Decisions

Extradition Warrant.

This statute does not authorize admission to bail of a fugitive from justice held in custody under a warrant issued by the governor of the state upon requisition of the governor of a foreign state. In re Amundson, 74 N.D. 83, 19 N.W.2d 918, 1945 N.D. LEXIS 55 (N.D. 1945).

Collateral References.

Habeas Corpus 33, 107.

39 Am. Jur. 2d, Habeas Corpus, §§ 36, 37.

39 C.J.S. Habeas Corpus, §§ 197-199.

32-22-21. Procedure when person not entitled to discharge.

If a party brought before the court on the return of the writ is not entitled to a discharge, and is not admitted to bail or bailed when allowable, the court must remand the party to custody, or place the party under the restraint from which the party was taken, if the person under whose custody or restraint the party was is legally entitled thereto.

Source:

C. Crim. P. 1877, § 675; R.C. 1895, § 8666; R.C. 1899, § 8666; R.C. 1905, § 10486; C.L. 1913, § 11377; R.C. 1943, § 32-2221.

32-22-22. Prisoner may be ordered to custody of proper officer.

In cases in which any party is held under illegal restraint or custody, and any other person is entitled to the custody or restraint of such party, the court may order such party to be committed to the custody or restraint of such person as by law is entitled thereto.

Source:

R.C. 1895, § 8667; R.C. 1899, § 8667; R.C. 1905, § 10487; C.L. 1913, § 11378; R.C. 1943, § 32-2222.

32-22-23. How person disposed of before judgment.

Until judgment is given on the return, the court before whom any party may be brought on such writ may commit the party to the sheriff of the county or place the party in such care or under such custody as the party’s age or circumstances may require.

Source:

R.C. 1895, § 8668; R.C. 1899, § 8668; R.C. 1905, § 10488; C.L. 1913, § 11379; R.C. 1943, § 32-2223.

32-22-24. When notice of hearing must be given state’s attorney.

When it appears that the person in whose behalf a writ of habeas corpus is issued is held upon a criminal charge of any kind, notice of the time and place of the hearing upon the return shall be given to the state’s attorney of the county where the offense arose if the person is within the state’s attorney’s county. In other cases, like notice shall be given to any person interested in continuing the custody or restraint of the party asking aid of such writ.

Source:

R.C. 1895, § 8669; R.C. 1899, § 8669; R.C. 1905, § 10489; C.L. 1913, § 11380; R.C. 1943, § 32-2224.

32-22-25. Person taken out of county — Expenses.

Whenever the officer or person to whom a writ of habeas corpus is directed and delivered is required thereby to make return and take the person in whose behalf the writ is issued into a county other than the county in which such person is imprisoned or restrained, the court awarding the writ, at the court’s discretion, may ascertain, and by an entry thereon specifying the amount, but not exceeding fifteen cents per mile, may require the payment or tender, at the time of delivering the writ, of the charges of obeying the same. However, in no case when an entry is not made can the payment or tender of such charges be demanded before the return of the writ in accordance with its direction.

Source:

C. Crim. P. 1877, § 671; R.C. 1895, § 8670; R.C. 1899, § 8670; R.C. 1905, § 10490; C.L. 1913, § 11381; R.C. 1943, § 32-2225.

32-22-26. Writ must not be disobeyed.

No writ of habeas corpus can be disobeyed for defect of form, if it sufficiently appears therefrom in whose restraint the party imprisoned or restrained is, the officer or person detaining the party, and the court before whom the party is to be brought.

Source:

R.C. 1895, § 8671; R.C. 1899, § 8671; R.C. 1905, § 10491; C.L. 1913, § 11382; R.C. 1943, § 32-2226.

32-22-27. When person discharged may be arrested again.

No person who has been discharged by the order of the court upon habeas corpus can be imprisoned again or kept in custody for the same cause, except in any of the following cases:

  1. If the person has been discharged from custody on a criminal charge and is committed afterwards for the same offense, by legal order or process.
  2. If, after a discharge for defect of proof, or for any defect of the process, warrant, or commitment in a criminal action, the accused is arrested again on sufficient proof and committed by legal process for the same offense.
  3. If in a civil action the party has been discharged for any illegality in the order, judgment, or process and afterwards is imprisoned by legal process for the same claim for relief.

Source:

C. Crim. P. 1877, § 677; R.C. 1895, § 8672; R.C. 1899, § 8672; R.C. 1905, § 10492; C.L. 1913, § 11383; R.C. 1943, § 32-2227; S.L. 1985, ch. 82, § 82.

Cross-References.

Penalty for unauthorized rearrest on same charge, see N.D.C.C. § 32-22-40.

Notes to Decisions

Discharge Not Res Judicata.

Where a prisoner has been discharged by writ of habeas corpus on ground that governor’s rendition warrant was not served within a reasonable time, such discharge is neither res judicata as to the validity of the warrant nor as to the validity of a subsequent arrest on the warrant. Bebeau v. Granrud, 184 N.W.2d 577, 1971 N.D. LEXIS 149 (N.D. 1971).

Review of Discharge.

Discharge under writ of habeas corpus cannot be reviewed in any manner. Carruth v. Taylor, 8 N.D. 166, 77 N.W. 617, 1898 N.D. LEXIS 41 (N.D. 1898).

32-22-28. How obedience to order of discharge enforced.

Obedience to an order for the discharge of any person, granted pursuant to the provisions of this chapter, may be enforced by the court or judge issuing such writ, or granting such order, by attachment, in the same manner as hereinbefore provided for a neglect to make a return to a writ of habeas corpus, and the person guilty of such disobedience shall forfeit to the party aggrieved five hundred dollars, in addition to any special damages such party may have sustained.

Source:

R.C. 1895, § 8673; R.C. 1899, § 8673; R.C. 1905, § 10493; C.L. 1913, § 11384; R.C. 1943, § 32-2228.

32-22-29. Person restrained in danger of being taken out of jurisdiction — Warrant.

When it appears to any court authorized by law to issue the writ of habeas corpus that anyone is illegally held in custody, confinement, or restraint, and that there is reason to believe that the person will be carried out of the jurisdiction of the court, or will suffer some irreparable injury before compliance with the writ of habeas corpus can be enforced, the court may cause a warrant to be issued reciting the facts and directed to the sheriff or coroner of the county, commanding the officer to take the person thus held in custody, confinement, or restraint, and forthwith bring that person before the court to be dealt with according to law. The court also may insert in the warrant a command for the arrest of the person charged with the illegal detention and restraint.

Source:

R.C. 1895, § 8674; R.C. 1899, § 8674; R.C. 1905, § 10494; C.L. 1913, § 11385; R.C. 1943, § 32-2229; S.L. 1985, ch. 151, § 26.

32-22-30. Execution of warrant.

The officer to whom such warrant is delivered must execute it by bringing the person therein named before the court who directed the issuing of such warrant, but if such warrant is issued by the supreme court or a judge thereof, upon the return of the warrant, the hearing and decision of the matter may be ordered by such court or judge to be had before the district court of the proper county or the judge thereof.

Source:

R.C. 1895, § 8675; R.C. 1899, § 8675; R.C. 1905, § 10495; C.L. 1913, § 11386; R.C. 1943, § 32-2230.

32-22-31. Return to warrant — Procedure.

The person alleged to have such party under illegal confinement or restraint may make return to such warrant, as in case of a writ of habeas corpus, and the same may be denied, and like allegations, proofs, and trial thereupon may be had as upon a return to a writ of habeas corpus.

Source:

R.C. 1895, § 8676; R.C. 1899, § 8676; R.C. 1905, § 10496; C.L. 1913, § 11387; R.C. 1943, § 32-2231.

32-22-32. When person must be discharged.

If the party is held under illegal custody or restraint, the party must be discharged or be restored to the care or custody of the person entitled thereto.

Source:

R.C. 1895, § 8677; R.C. 1899, § 8677; R.C. 1905, § 10497; C.L. 1913, § 11388; R.C. 1943, § 32-2232.

32-22-33. When writ may be served.

Any writ or process authorized by this chapter may be issued and served on any day or at any time.

Source:

R.C. 1895, § 8678; R.C. 1899, § 8678; R.C. 1905, § 10498; C.L. 1913, § 11389; R.C. 1943, § 32-2233.

32-22-34. Accused liberated for want of prosecution.

If any person shall be committed for a criminal or supposed criminal matter and not admitted to bail, and shall not be tried on or before the second term of the court having jurisdiction of the offense, the prisoner shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner. If such court at the second term shall be satisfied that due exertions have been made to procure the evidence for and on behalf of the state, and that there are reasonable grounds to believe that such evidence may be procured at the third term, it shall have power to continue such case until the third term. If any such prisoner shall have been admitted to bail for a crime other than a capital offense, the court may continue the trial of said cause to a third term, if it shall appear by oath or affirmation that the witnesses for the state are absent, such witnesses being mentioned by name, and the court shown wherein their testimony is material.

Source:

C. Crim. P. 1877, § 678; R.C. 1895, § 8679; R.C. 1899, § 8679; R.C. 1905, § 10499; C.L. 1913, § 11390; R.C. 1943, § 32-2234.

Notes to Decisions

Effect of Request for Delay.

Accused not admitted to bail will not be released simply because not brought to trial before second term following commitment, when delay was at request of accused. State ex rel. Adams v. Larson, 12 N.D. 474, 97 N.W. 537, 1903 N.D. LEXIS 48 (N.D. 1903).

32-22-35. Writ not allowed to delay trial.

To prevent any person from avoiding or delaying that person’s trial, it shall not be lawful to remove any prisoner on habeas corpus under this chapter out of the county in which the prisoner is confined, within fifteen days next preceding the term of the court at which such person ought to be tried, unless it is to convey the prisoner into the county where the offense with which the prisoner stands charged properly is cognizable.

Source:

C. Crim. P. 1877, § 679; R.C. 1895, § 8680; R.C. 1899, § 8680; R.C. 1905, § 10500; C.L. 1913, § 11391; R.C. 1943, § 32-2235.

32-22-36. Prisoners may not be removed from one prison to another — Exceptions. [Repealed]

Repealed by S.L. 1997, ch. 114, § 8.

32-22-37. Penalty if judge refuses or delays writ.

Any judge empowered by this chapter to issue writs of habeas corpus, who corruptly shall refuse to issue such writ when legally applied to, in a case in which such writ may issue lawfully, or who, for the purpose of oppression, shall delay unreasonably the issuing of such writ, shall forfeit to the prisoner or party aggrieved a sum not exceeding five hundred dollars for every such offense.

Source:

C. Crim. P. 1877, § 681; R.C. 1895, § 8682; R.C. 1899, § 8682; R.C. 1905, § 10502; C.L. 1913, § 11393; R.C. 1943, § 32-2237.

32-22-38. Removing or concealing prisoner to avoid writ — Penalty.

Anyone having a person in custody or under restraint, power, or control, for whose relief a writ of habeas corpus is issued, who, with intent to avoid the effect of such writ, shall transfer such person to the custody, or place such person under control of another, or shall conceal such person or change the place of such person’s confinement with intent to avoid the operation of such writ, or with intent to remove such person out of this state, shall be guilty of a class C felony. In any prosecution under this section, it shall not be necessary to show that the writ of habeas corpus had issued at the time of the removal, transfer, or concealment therein mentioned, if it is proven that the acts therein forbidden were done with the intent to avoid the operation of such writ.

Source:

C. Crim. P. 1877, § 683; R.C. 1895, § 8683; R.C. 1899, § 8683; R.C. 1905, § 10503; C.L. 1913, § 11394; R.C. 1943, § 32-2238; S.L. 1975, ch. 106, § 347.

32-22-39. Officer refusing prisoner copy of commitment — Penalty. [Repealed]

Repealed by S.L. 1985, ch. 169, § 3.

32-22-40. Penalty for rearresting on same charge.

Any person who, knowing that another has been discharged by order of a competent judge or tribunal on a writ of habeas corpus, shall arrest or detain that person again, contrary to the provisions of this chapter, for the same cause which was shown on the return of such writ, shall forfeit five hundred dollars for the first offense, and one thousand dollars for every subsequent offense.

Source:

C. Crim. P. 1877, § 685; R.C. 1895, § 8685; R.C. 1899, § 8685; R.C. 1905, § 10505; C.L. 1913, § 11396; R.C. 1943, § 32-2240.

Cross-References.

When person discharged may be arrested again, see, N.D.C.C. § 32-22-27.

32-22-41. All penalties inure to use of party aggrieved.

All the pecuniary forfeitures under this chapter shall inure to the use of the party for whose benefit the writ of habeas corpus issued, and shall be sued for and recovered with costs, in the name of the state, by any person aggrieved.

Source:

C. Crim. P. 1877, § 686; R.C. 1895, § 8686; R.C. 1899, § 8686; R.C. 1905, § 10506; C.L. 1913, § 11397; R.C. 1943, § 32-2241.

32-22-42. Recovery of penalties no bar to civil action.

The recovery of the penalties prescribed by this chapter shall be no bar to a civil suit for damages.

Source:

C. Crim. P. 1877, § 688; R.C. 1895, § 8687; R.C. 1899, § 8687; R.C. 1905, § 10507; C.L. 1913, § 11398; R.C. 1943, § 32-2242.

32-22-43. Writ may issue for witness or for surrender of principal in discharge of bail — Liability of jailer — Costs.

The supreme court or any district court within this state, or any judge of any such court, may issue a writ of habeas corpus to bring the body of any person confined in any jail in the state before such court or judge to testify or to be surrendered in discharge of bail. Where a writ is issued for any such purpose and the witness or principal sought is confined in any jail in a county other than the county in which such person is to be surrendered, or to which such person is to be removed, and where such writ is executed and returned by an officer to whom it is directed, the jailer from whose custody such person is taken shall be exonerated from liability for an escape if:

  1. The court or judge issuing the writ shall make an order directing the return of such person to the custody of such jailer.
  2. An attested copy of such order is delivered to the said jailer.
  3. The officer to whom the writ was directed shall return such person pursuant to the said order after the execution of the writ.

The party praying out such writ of habeas corpus shall pay to the officer executing the same such reasonable sum for the officer’s services as shall be adjudged by the court.

Source:

C. Crim. P. 1877, § 689; R.C. 1895, § 8688; R.C. 1899, § 8688; R.C. 1905, § 10508; C.L. 1913, § 11399; R.C. 1943, § 32-2243.

Notes to Decisions

Attendance of Prisoner.

The courts may procure attendance of a convicted prisoner, either as a witness or as a defendant, through habeas corpus or by some other proper order. Hagar v. Homuth, 68 N.D. 84, 276 N.W. 668, 1937 N.D. LEXIS 133 (N.D. 1937).

CHAPTER 32-23 Declaratory Judgments

32-23-01. Court of record may enter a declaratory judgment.

A court of record within its jurisdiction shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect, and such declaration shall have the force and effect of a final judgment or decree.

Source:

S.L. 1923, ch. 237, § 1; 1925 Supp., § 7712a1; R.C. 1943, § 32-2301.

Notes to Decisions

Administrative Decisions.

A taxpayer may seek to have his rights under a decision of the tax commissioner declared under this section even though the statutory time to appeal such decision under N.D.C.C. § 28-32-42 has passed. Heasley v. Engen, 124 N.W.2d 398, 1963 N.D. LEXIS 118 (N.D. 1963).

Advisory Opinion.

An action or proceeding does not lie under the Declaratory Judgment Act to obtain a decision which is merely advisory or which merely determines abstract questions. LANGER v. STATE, 69 N.D. 129, 284 N.W. 238, 1939 N.D. LEXIS 137 (N.D. 1939); Asbury Hosp. v. Cass County, 72 N.D. 359, 7 N.W.2d 438, 1943 N.D. LEXIS 75 (N.D. 1943).

Where district court could grant no relief, its memorandum opinion on the correctness of board’s action was advisory only, determining questions not essential to the decision of an actual controversy; furthermore, the board’s violations, if any, of defendant’s rights had already occurred, rendering declaratory relief inappropriate. Richland County Water Resource Bd. v. Pribbernow, 442 N.W.2d 916, 1989 N.D. LEXIS 135 (N.D. 1989).

Advisory Opinions.

Election challengers who were challenging a school district reorganization election six years earlier could not obtain declaratory relief under N.D.C.C. § 32-23-06, N.D.C.C.§ 32-23-01, and N.D.C.C. § 32-23-02 since the election mooted the issue of its validity. Under N.D.C.C. § 1-02-12, uniform statutes had to be read uniformly and declaratory relief was unavailable because there was no longer a controversy. Brandvold v. Lewis & Clark Pub. Sch. Dist. #161, 2011 ND 185, 803 N.W.2d 827, 2011 N.D. LEXIS 176 (N.D. 2011).

Attorney General’s Opinion Disputed.

Where attorney general had already issued his opinion, nothing further appeared to be threatened by him, and issuance of his opinion appeared to have been within scope of his jurisdiction, writ of prohibition was unavailable; however, supreme court would proceed pursuant to declaratory judgment procedure. State ex rel. Link v. Olson, 286 N.W.2d 262, 1979 N.D. LEXIS 319 (N.D. 1979).

County Court.

County court has jurisdiction to render judgment construing the will of a testator whose estate is in the course of administration in the court. Bronson v. Johnson, 76 N.D. 122, 33 N.W.2d 819, 1948 N.D. LEXIS 65 (N.D. 1948).

Declaratory Relief Inappropriate.

A declaratory judgment, by its very nature, is intended to clarify the rights of parties before those rights are violated. Once rights are violated, declaratory relief is inappropriate. Allen v. Minot, 363 N.W.2d 553, 1985 N.D. LEXIS 269 (N.D. 1985).

Where the plaintiff was not asking that his prospective rights be determined, but rather, was seeking redress for a violation of his rights which he alleged had already occurred, declaratory relief was inappropriate. Allen v. Minot, 363 N.W.2d 553, 1985 N.D. LEXIS 269 (N.D. 1985).

Insurance Coverage.

Nothing in the Declaratory Judgment Act precluded homeowners’ liability insurance carrier who had notice of claims against its insureds, but against whom suit had not yet been filed, from seeking judicial determination of the carrier’s duties to defend and indemnify its insureds. Ohio Cas. Ins. Co. v. Horner, 1998 ND 168, 583 N.W.2d 804, 1998 N.D. LEXIS 177 (N.D. 1998).

Justiciable Controversy.

The Declaratory Judgment Act is intended to provide a method whereby the parties to a justiciable controversy may have such controversy determined by a court in advance of the invasion of any rights. G. W. Jones Lumber Co. v. Marmarth, 67 N.D. 309, 272 N.W. 190, 1937 N.D. LEXIS 84 (N.D. 1937); LANGER v. STATE, 69 N.D. 129, 284 N.W. 238, 1939 N.D. LEXIS 137 (N.D. 1939); Asbury Hosp. v. Cass County, 72 N.D. 359, 7 N.W.2d 438, 1943 N.D. LEXIS 75 (N.D. 1943); Ginakes v. Johnson, 75 N.D. 164, 26 N.W.2d 368, 1947 N.D. LEXIS 55 (N.D. 1947); Iverson v. Tweeden, 78 N.D. 132, 48 N.W.2d 367, 1951 N.D. LEXIS 79 (N.D. 1951).

The parties in a declaratory judgment action cannot by consent, either express or passive, transform a controversy that is not justiciable into one which is justiciable. LANGER v. STATE, 69 N.D. 129, 284 N.W. 238, 1939 N.D. LEXIS 137 (N.D. 1939).

A justiciable controversy must exist before a declaratory judgment action can be maintained. United Pac. Ins. Co. v. Aetna Ins. Co., 311 N.W.2d 170, 1981 N.D. LEXIS 387 (N.D. 1981).

There was no justiciable controversy, and district court lacked jurisdiction to render a declaratory judgment deciding which of two insurers had the duty to defend and provide coverage to an insured, where the liability of either insurer was contingent upon the outcome of an action by a third party against the insured which was still pending in the district court. United Pac. Ins. Co. v. Aetna Ins. Co., 311 N.W.2d 170 (N.D. 1981), decided prior to the amendment to N.D.C.C. § 32-23-06 by Session Laws 1983, ch. 377.

Mortgage and Tax Liens.

Where the trial court exercises its jurisdiction to grant an application for a declaratory judgment determining the validity and priority of mortgage and tax liens, it becomes necessary to determine the matter fully. State v. Divide County, 68 N.D. 708, 283 N.W. 184, 1938 N.D. LEXIS 160 (N.D. 1938).

No Contest Clause.

In a case involving an interpretation of a trust, a no contest clause contained in the trust did not eliminate potential beneficiaries from recovering because they sought a declaratory action to enforce the express terms of the trust. Langer v. Pender, 2009 ND 51, 764 N.W.2d 159, 2009 N.D. LEXIS 35 (N.D. 2009).

Prison Inmate Medical Care.

Where prison inmate claimed continuing, as well as past, violation of his rights to receive medical care, declaratory relief was available, and may have been appropriate, and his petition should not have been dismissed for failure to state a claim in so far as it sought such relief. Ennis v. Dasovick, 506 N.W.2d 386, 1993 N.D. LEXIS 168 (N.D. 1993).

Purpose of Declaratory Relief.

The purpose of declaratory relief is to settle uncertainties about rights, status, and other legal relations in an underlying justiciable controversy. In Interest of McMullen, 470 N.W.2d 196, 1991 N.D. LEXIS 85 (N.D. 1991).

District court had subject matter and personal jurisdiction to determine cities' rights and obligations under a contract to build and operate a waste water treatment facility and consider partition of the facility because (1) the court was a court of general jurisdiction, and (2) proper service of process under N.D. R. Civ. P. 4 gave the court personal jurisdiction over the parties. City of Harwood v. City of Reiles Acres, 2015 ND 33, 859 N.W.2d 13, 2015 N.D. LEXIS 21 (N.D. 2015).

Relief Granted When Underlying Controversy Not Terminated.

Declaratory relief may be granted even though the declaration would not terminate the underlying controversy if the declaration can be of some help to end the controversy; for purposes of appeal, supreme court suggests that there be a showing of how the declaration aids in the disposition of the basic controversy where it may be otherwise obvious that the declaratory relief would not dispose of such controversy. Aberle v. Karn, 316 N.W.2d 779 (N.D. 1982), decided prior to the amendment to N.D.C.C. § 32-23-06, by Session Laws 1983, ch. 377.

Reviewability of Appeal

Appeal was reviewable because the court's January 2014 order and subsequent consistent judgment were intended to be a final judgment on all proceedings relating to the lessors' action for declaratory relief; further, the January 2014 judgment dismissing lessee's counterclaim against the lessor also effectively dismissed the lessors' claim against the lessee's president. Funke v. Aggregate Constr., Inc., 2015 ND 123, 863 N.W.2d 855, 2015 N.D. LEXIS 121 (N.D. 2015).

Rules of Civil Procedure.

Rule 57, N.D.R.Civ.P., does not expand, but merely implements, the provisions of this chapter. Shark Bros. v. Cass County, 256 N.W.2d 701, 1977 N.D. LEXIS 154 (N.D. 1977).

Uncertainty or Controversy.

A declaratory judgment can be rendered only where it appears that rendition of the judgment will terminate uncertainty or controversy giving rise to the proceeding. LANGER v. STATE, 69 N.D. 129, 284 N.W. 238, 1939 N.D. LEXIS 137 (N.D. 1939).

Collateral References.

Declaratory Judgment 1-69, 271-276.

22A Am. Jur. 2d, Declaratory Judgments, §§ 1 et seq.

26 C.J.S. Declaratory Judgments, §§ 1-29, 114-116, 118-120.

Res judicata: extent to which principles of res judicata are applicable to judgments in actions for declaratory relief, 10 A.L.R.2d 782.

Tax questions as proper subject of action for declaratory judgment, 11 A.L.R.2d 359.

Unemployment compensation, declaratory relief with respect to, 14 A.L.R.2d 826.

Social club or similar society, declaratory relief from expulsion from, 20 A.L.R.2d 344, 393.

Church or religious society, declaratory relief for expulsion from, 20 A.L.R.2d 421.

Professional association, declaratory relief from expulsion from, 20 A.L.R.2d 531.

Issue as to negligence as a proper subject of declaratory judgment action, 28 A.L.R.2d 957.

Partnership or joint venture matters as subject of declaratory judgment, 32 A.L.R.2d 970.

Office in unincorporated private association, title or right to, 82 A.L.R.2d 1169, 1172.

Arbitration: availability and scope of declaratory judgment actions in determining rights of parties, or powers and exercise thereof by arbitrators, under arbitration agreements, 12 A.L.R.3d 854.

Relief other than by dissolution in cases of intracorporate deadlock or dissension, 34 A.L.R.4th 13.

Comparative Legislation.

Jurisdictions which have enacted the Uniform Declaratory Judgments Act include:

Ala. Code §§ 6-6-220 to 6-6-232.

Ariz. Rev. Stat. Ann. §§ 12-1831 to 12-1846.

Ark. Stat. Ann. §§ 16-111-101 to 16-111-111.

Colo. Rev. Stat. §§ 13-51-101 to 13-51-115.

Del. Code Ann. tit. 10 §§ 6501 to 6513.

Fla. Stat. §§ 86.011 to 86.111.

Idaho Code §§ 10-1201 to 10-1217.

Ill. 735 ILCS -701.

Ind. Code §§ 34-4-10-1 to 34-4-10-16.

Iowa Code, Iowa Rules Civ. Proc., Rules 261 to 269.

La. Code Crim. Proc. Ann. arts. 1871 to 1883.

Me. Rev. Stat. Ann. tit. 14, §§ 5951 to 5963.

Md. Cts. & Jud. Proc. Code Ann. §§ 3-401 to 3-415.

Mass. Gen. Laws Ann. ch. 231A, §§ 1 to 9.

Minn. Stat. §§ 555.01 to 555.16.

Mo. Rev. Stat. §§ 527.010 to 527.140.

Mont. Code Ann. §§ 27-8-101 to 27-8-313.

Neb. Rev. Stat. §§ 25-21-149 to 25-21-164.

Nev. Rev. Stat. §§ 30.010 to 30.160.

N.J. Rev. Stat. §§ 2A:16-50 to 2A:16-62.

N.M. Stat. Ann. §§ 44-6-1 to 44-6-15.

N.C. Gen. Stat. §§ 1-253 to 1-267.

Ohio Rev. Code Ann. §§ 2721.01 to 2721.15.

Okla. Stat. tit. 12, §§ 1651 to 1657.

Or. Rev. Stat. §§ 28.010 to 28.160.

Pa. Stat. Ann. tit. 42, §§ 7531 to 7541.

P.R. Laws Ann. tit. 32, App. III, Rule 59.

R.I. Gen. Laws §§ 9-30-1 to 9-30-16.

S.C. Code Ann. §§ 15-53-10 to 15-53-140.

S.D. Cod. Laws Ann. §§ 21-24-1 to 21-24-16.

Tenn. Code Ann. §§ 29-14-101 to 29-14-113.

Tex. Rev. Civ. Stat. Ann. §§ 37.001 to 37.011.

Utah Code Ann. §§ 78-33-1 to 78-33-13.

Va. Code Ann. §§ 8.01-184 to 8.01-191.

Vt. Stat. Ann. tit. 12, §§ 4711 to 4725.

V.I. Code Ann. tit. 5, §§ 1261 to 1272.

Wash. Rev. Code §§ 7.24.010 to 7.24.144.

W. Va. Code §§ 55-13-1 to 55-13-16.

Wis. Stat. § 806.04.

Wyo. Stat. §§ 1-37-101 to 1-37-115.

32-23-02. Power to construe contracts, statutes, and wills.

Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and may obtain a declaration of rights, status, or other legal relations thereunder.

Source:

S.L. 1923, ch. 237, § 3; 1925 Supp., § 7712a2; R.C. 1943, § 32-2302.

Cross-References.

Parties to action, see N.D.C.C. § 32-23-11.

Notes to Decisions

Exhaustion of Administrative Remedies.

A court’s authority to grant declaratory relief requires exhaustion of administrative remedies. Tooley v. Alm, 515 N.W.2d 137, 1994 N.D. LEXIS 89 (N.D. 1994).

Plaintiff does not have to exhaust administrative remedies before court can grant declaratory relief based upon interpretation of unambiquous statute, because interpretation of an unambiguous statute is not an issue generally reserved to an administrative decisionmaker. Medcenter One v. North Dakota State Bd. of Pharm., 1997 ND 54, 561 N.W.2d 634, 1997 N.D. LEXIS 54 (N.D. 1997).

Group Action for Declaratory Relief.

Group of farmers who brought action to have membership agreements between them and the National Farmer’s Organization declared void and unenforceable were not required to bring the action as a class action, and all of them as plaintiffs were not required to testify to sustain their burden of proof. Boe v. National Farmer's Org., 277 N.W.2d 291, 1979 N.D. LEXIS 205 (N.D. 1979).

Issue Preclusion.

Claims by former property owners (FPOs) against the new owners were barred by the doctrine of issue preclusion because it had been previously decided in a state court action that the FPOs lacked a contractual interest in the property, such that they could not relitigate that issue under a tortious interference claim. Finstad v. Beresford Bancorporation, Inc., 831 F.3d 1009, 2016 U.S. App. LEXIS 14389 (8th Cir. N.D. 2016).

Labor Contract with Arbitration Clause.

Declaratory judgment is proper to determine if a particular dispute is subject to arbitration under a labor-management contract providing for binding arbitration of grievances; however, once it is determined that a dispute is subject to arbitration, the resolution of the actual dispute is for the determination of the arbitrator and is not ripe for declaratory judgment. West Fargo Pub. Sch. Dist. v. West Fargo Educ. Ass'n, 259 N.W.2d 612, 1977 N.D. LEXIS 215 (N.D. 1977).

Legally Protectible Interest.

A person must have a legally protectible interest in the controversy to obtain declaratory relief. Therefore, farm worker lacked standing to challenge the coverage provisions in the insurance contract between his employer and insurance company. Rebel v. Nodak Mut. Ins. Co., 1998 ND 194, 585 N.W.2d 811, 1998 N.D. LEXIS 207 (N.D. 1998).

Property owner’s action seeking a judgment ordering the Petroleum Tank Release Compensation Fund to pay the cleanup costs following a petroleum release on the owner’s property was not appropriate for declaratory relief since the owner had not shown a clear legal right to the relief sought. Gottbreht v. State, 1999 ND 159, 598 N.W.2d 794, 1999 N.D. LEXIS 179 (N.D. 1999).

Oral Contract.

Although this section initially empowers courts to determine any question of construction or validity arising under a written contract and other writings constituting a contract, the statute also allows courts to determine questions of construction or validity for any person “whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise”. North Dakota’s Declaratory-Judgment Act has been liberally construed and has not been confined to the construction of formal writings. Thus the fact that a case involves an oral contract would not be sufficient of itself to preclude use of the Hoops v. Selid, 379 N.W.2d 270, 1985 N.D. LEXIS 451 (N.D. 1985).

Reviewability of Appeal.

Appeal was reviewable because the court's January 2014 order and subsequent consistent judgment were intended to be a final judgment on all proceedings relating to the lessors' action for declaratory relief; further, the January 2014 judgment dismissing lessee's counterclaim against the lessor also effectively dismissed the lessors' claim against the lessee's president. Funke v. Aggregate Constr., Inc., 2015 ND 123, 863 N.W.2d 855, 2015 N.D. LEXIS 121 (N.D. 2015).

Statute.

State budget board may seek declaratory relief against heads of state departments, officers, boards, and commissions who refuse to file reports with state auditor, where there was a duty to file such reports. LANGER v. STATE, 69 N.D. 129, 284 N.W. 238, 1939 N.D. LEXIS 137 (N.D. 1939).

Declaratory judgment action begun before initiated measure was effective, to declare such measure unconstitutional, was premature and presented no justiciable issue. Ginakes v. Johnson, 75 N.D. 164, 26 N.W.2d 368, 1947 N.D. LEXIS 55 (N.D. 1947).

Election challengers who were challenging a school district reorganization election six years earlier could not obtain declaratory relief under N.D.C.C. § 32-23-06, N.D.C.C.§ 32-23-01, and N.D.C.C. § 32-23-02 since the election mooted the issue of its validity. Under N.D.C.C. § 1-02-12, uniform statutes had to be read uniformly and declaratory relief was unavailable because there was no longer a controversy. Brandvold v. Lewis & Clark Pub. Sch. Dist. #161, 2011 ND 185, 803 N.W.2d 827, 2011 N.D. LEXIS 176 (N.D. 2011).

Validity of Contract.

Action for declaratory judgment to determine the validity of a cash lease of farm property was not inappropriate because a breach of the lease had already occurred, or because plaintiffs could instead have sued for breach of the lease. Bangen v. Bartelson, 553 N.W.2d 754, 1996 N.D. LEXIS 216 (N.D. 1996).

Oil and gas leases were invalid as a matter of law because a county executed the leases without publishing notice of the leases; the district court did not err in concluding the leases were operative because the leases did not include language prohibiting drilling or development; Twin City Tech. LLC v. Williams Cty., 2019 ND 128, 927 N.W.2d 467, 2019 N.D. LEXIS 120 (N.D. 2019).

Written Contract.

A statutory declaratory judgment may be entered determining the question of the construction or validity of a written contract where there was an actual controversy between the parties to the contract which has been submitted to the court in a proceeding in which a judgment may be entered that will conclusively determine the controversy. G. W. Jones Lumber Co. v. Marmarth, 67 N.D. 309, 272 N.W. 190, 1937 N.D. LEXIS 84 (N.D. 1937).

In an action for a declaration of rights of the parties under a written contract, warrant of attachment could not be issued in favor of plaintiff. Kohler v. Cole, 79 N.D. 226, 55 N.W.2d 589, 1952 N.D. LEXIS 115 (N.D. 1952).

District court had subject matter and personal jurisdiction to determine cities' rights and obligations under a contract to build and operate a waste water treatment facility and consider partition of the facility because (1) the court was a court of general jurisdiction, and (2) proper service of process under N.D. R. Civ. P. 4 gave the court personal jurisdiction over the parties. City of Harwood v. City of Reiles Acres, 2015 ND 33, 859 N.W.2d 13, 2015 N.D. LEXIS 21 (N.D. 2015).

Collateral References.

Declaratory Judgment 121-129, 141-149, 161-172, 241-244.

22A Am. Jur. 2d, Declaratory Judgments, §§ 53 et seq.

26 C.J.S. Declaratory Judgments, §§ 48-69, 104-107.

Relief against covenant restricting right to engage in business or profession as subject of declaratory judgment, 10 A.L.R.2d 743.

Lease of real property, validity of, 60 A.L.R.2d 400.

Antenuptial agreement: declaratory judgment, during lifetime of spouses, as to construction of antenuptial agreement dealing with property rights of survivor, 80 A.L.R.2d 941.

Common-law marriage, validity or existence of, 92 A.L.R.2d 1102.

Covenants: breach of lessor’s covenant against use of his other property in competition with lessee-covenantee, 97 A.L.R.2d 4, 119.

Criminal statutes: validity, construction, and application of criminal statutes or ordinances as proper subject for declaratory judgment, 10 A.L.R.3d 727.

Arbitration: availability and scope of declaratory judgment actions in determining rights of parties, or powers and exercise thereof by arbitrators, under arbitration agreements, 12 A.L.R.3d 854.

Law Reviews.

North Dakota Supreme Court Review (Capital Elec. Coop. v. Bismarck, 2007 ND 128, 736 N.W.2d 788 (2007)), see 84 N.D. L. Rev. 567 (2008).

32-23-03. Construction before or after breach.

A contract may be construed either before or after there has been a breach thereof.

Source:

S.L. 1923, ch. 237, § 3; 1925 Supp., § 7712a3; R.C. 1943, § 32-2303.

Notes to Decisions

After Breach.

Action for declaratory judgment to determine the validity of a cash lease of farm property was not inappropriate because a breach of the lease had already occurred, or because plaintiffs could instead have sued for breach of the lease. Bangen v. Bartelson, 553 N.W.2d 754, 1996 N.D. LEXIS 216 (N.D. 1996).

Applicability.

District court had subject matter and personal jurisdiction to determine cities' rights and obligations under a contract to build and operate a waste water treatment facility and consider partition of the facility because (1) the court was a court of general jurisdiction, and (2) proper service of process under N.D. R. Civ. P. 4 gave the court personal jurisdiction over the parties. City of Harwood v. City of Reiles Acres, 2015 ND 33, 859 N.W.2d 13, 2015 N.D. LEXIS 21 (N.D. 2015).

District court, which found that plaintiffs each owned a 1/4 interest in a well on defendant’s property, did not abuse its discretion by refusing to allow defendant to amend her answer to allege a statute of limitations affirmative defense. Plaintiffs brought this action under N.D.C.C. ch. 32-23, seeking to have their contract construed as an easement. Niles v. Eldridge, 2013 ND 52, 828 N.W.2d 521, 2013 N.D. LEXIS 44 (N.D. 2013).

Bondholders’ Rights.

Bondholders were entitled to a declaratory judgment of rights where city notified them that previous irrepealable tax was invalid and indicated it would not abide by compromise previously reached with bondholders. G. W. Jones Lumber Co. v. Marmarth, 67 N.D. 309, 272 N.W. 190, 1937 N.D. LEXIS 84 (N.D. 1937).

Reviewability of Appeal.

Appeal was reviewable because the court's January 2014 order and subsequent consistent judgment were intended to be a final judgment on all proceedings relating to the lessors' action for declaratory relief; further, the January 2014 judgment dismissing lessee's counterclaim against the lessor also effectively dismissed the lessors' claim against the lessee's president. Funke v. Aggregate Constr., Inc., 2015 ND 123, 863 N.W.2d 855, 2015 N.D. LEXIS 121 (N.D. 2015).

32-23-04. Rights in trust or estate determined.

Any person interested as or through a personal representative, trustee, guardian, conservator, or other fiduciary, creditor, devisee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent, an infant, a mentally ill or deficient person, or an insolvent, may have a declaration of rights or legal relations in respect thereto:

  1. To ascertain any class of creditors, devisees, heirs, next of kin, or others;
  2. To direct the personal representatives or trustees to do or abstain from doing any particular act in their fiduciary capacity; or
  3. To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.

Source:

S.L. 1923, ch. 237, § 4; 1925 Supp., § 7712a4; R.C. 1943, § 32-2304; S.L. 1973, ch. 257, § 41.

Notes to Decisions

Question Regarding Administration of Estate.

In a case in which the personal representative petitioned the probate court for direction regarding a settlement offer in a separate civil action, and respondents cited no authority precluding the probate court from providing direction on the settlement of the separate civil action in the context of a supervised administration, the probate court did not abuse its discretion in providing the personal representative with the authority to manage the separate civil action. Bouchard v. Biel (In re Estate of Brandt), 2019 ND 87, 924 N.W.2d 762, 2019 N.D. LEXIS 86 (N.D. 2019).

—Ownership of Cattle.

The district court erred in characterizing a case as one brought under this section where the most compelling issue to settle in the suit was the factual issue of the ownership of the double-branded cattle. Cook v. Hansen, 499 N.W.2d 94, 1993 N.D. LEXIS 72 (N.D. 1993).

Collateral References.

Declaratory Judgment 241-244.

22A Am. Jur. 2d, Declaratory Judgments, §§ 147 et seq.

26 C.J.S. Declaratory Judgments, §§ 104-107.

Tax questions as proper subject of action for declaratory judgment, 11 A.L.R.2d 359.

32-23-05. Enumeration not exclusive.

The enumeration of powers in sections 32-23-02, 32-23-03, and 32-23-04 does not limit or restrict the exercise of the general powers conferred in section 32-23-01, in any proceeding in which declaratory relief is sought in which a judgment or decree will terminate the controversy or remove an uncertainty.

Source:

S.L. 1923, ch. 237, § 5; 1925 Supp., § 7712a5; R.C. 1943, § 32-2305.

Notes to Decisions

Exhaustion of Administrative Remedies.

Plaintiff does not have to exhaust administrative remedies before court can grant declaratory relief based upon interpretation of unambiquous statute, because interpretation of an unambiguous statute is not an issue generally reserved to an administrative decisionmaker. Medcenter One v. North Dakota State Bd. of Pharm., 1997 ND 54, 561 N.W.2d 634, 1997 N.D. LEXIS 54 (N.D. 1997).

Purpose of Declaratory Relief.

The purpose of declaratory relief is to settle uncertainties about rights, status, and other legal relations in an underlying justiciable controversy. In Interest of McMullen, 470 N.W.2d 196, 1991 N.D. LEXIS 85 (N.D. 1991).

Sufficiency of Complaint.

The complaint must allege facts upon which the court can render a judgment or decree that will terminate the controversy or remove an uncertainty. Iverson v. Tweeden, 78 N.D. 132, 48 N.W.2d 367, 1951 N.D. LEXIS 79 (N.D. 1951).

32-23-06. Entering of declaratory judgment discretionary with court — Exception.

The court may refuse to render or enter a declaratory judgment or decree if such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding. However, the court shall render or enter a declaratory judgment or decree in an action brought by or against an insurance company to determine liability of the insurance company to the insured to defend, or duty to defend, although the insured’s liability for the loss may not have been determined.

Source:

S.L. 1923, ch. 237, § 6; 1925 Supp., § 7712a6; R.C. 1943, § 32-2306; S.L. 1983, ch. 377, § 1.

Notes to Decisions

Appropriateness.

The court in its discretion may refuse to render a declaratory judgment where it would not terminate the uncertainty or controversy giving rise to the proceeding, and courts should strive to avoid granting declaratory judgments if to do so would entail piecemeal litigation of the matters in controversy. Amerada Hess Corp. v. Conrad, 410 N.W.2d 124, 1987 N.D. LEXIS 354 (N.D. 1987).

Action for declaratory judgment to determine the validity of a cash lease of farm property was not inappropriate because a breach of the lease had already occurred, or because plaintiffs could instead have sued for breach of the lease. Bangen v. Bartelson, 553 N.W.2d 754, 1996 N.D. LEXIS 216 (N.D. 1996).

Where the insurance carrier concedes both a duty to defend and a potential obligation to indemnify the insured, there is no legitimate purpose for rendering a declaratory judgment prior to the conclusion of the underlying tort action. Midwest Med. Ins. Co. v. Doe, 1999 ND 17, 589 N.W.2d 581, 1999 N.D. LEXIS 19 (N.D. 1999).

In an insurer’s action seeking a declaration that the decedents’ underinsured motorist (UIM) coverage did not apply to their accident and could not be stacked, as the insurer was not seeking to determine if it had any responsibility to defend or if the policies covered underinsured motorists, the trial court did not abuse its discretion in rendering declaratory relief under N.D.C.C. § 32-23-06. The underlying tort issues did not affect the insurance issue, and there were no unresolved fact issues precluding resolution of the legal question about whether the policies involved could be stacked. Nodak Mut. Ins. Co. v. Wamsley, 2004 ND 174, 687 N.W.2d 226, 2004 N.D. LEXIS 304 (N.D. 2004).

In a suit brought by a condominium association against a pet owner for failing to comply with the association’s pet restrictions, the trial court did not err in its judgment regarding the Federal Fair Housing Act, or the North Dakota Fair Housing Act, in which it found that pet owner did not have a valid claim for an accommodation under the Fair Housing Act and that it would not honor any future claim unless the pet owner’s health changed significantly. Although pet owner claimed there was no justiciable controversy as to a claim for accommodation under the Fair Housing Act, the trial court found that there was a controversy since he had asserted a right to a housing act accommodation in his answer and, despite trying to remove it as an issue in the case, he tried to reserve the issue for future decision, by continuing to assert a right to make such a claim in the future. Riverside Park Condos. Unit Owners Ass'n v. Lucas, 2005 ND 26, 691 N.W.2d 862, 2005 N.D. LEXIS 26 (N.D. 2005).

District court misapplied the law and abused its discretion when it granted the buyers request for declaratory relief where it found that a reformation issue, which had arisen during trial, could not be decided without the grantee being made a party, and without resolving the reformation issue, declared that buyers had a valid enforceable option contract to purchase land the sellers did not own. Kauk v. Kauk, 2017 ND 118, 895 N.W.2d 295, 2017 N.D. LEXIS 115 (N.D. 2017).

Insurance Coverage and Duty to Defend.

The 1983 amendment to this section requires a trial court to render a declaratory judgment to determine both insurer’s coverage and duty to defend, whether or not the insured’s liability has been determined. Blackburn, Nickels & Smith v. National Farmers Union Property & Casualty Co., 452 N.W.2d 319, 1990 N.D. LEXIS 43 (N.D. 1990).

It would not encourage the providing of speedy economic relief to victims of accidents through settlements of lawsuits to construe this section to require that every request for declaratory relief must be brought before settlement has occurred. Blackburn, Nickels & Smith v. National Farmers Union Property & Casualty Co., 452 N.W.2d 319, 1990 N.D. LEXIS 43 (N.D. 1990).

Summary judgment under N.D.R.Civ.P. 56 for an insurer was proper in the insurer’s declaratory action under N.D.C.C. § 32-23-06 to resolve business policy coverage where a house fell off of the support jack when the insured was replacing the foundation because the insured did not present evidence to establish a genuine issue of material fact that the damages did not occur as a result of the insured’s faulty workmanship, which was excluded in the policy. It was also proper as to coverage for non-payment to a subcontractor because the policy did not cover contract claims. Grinnell Mut. Reinsurance Co. v. Lynne, 2004 ND 166, 686 N.W.2d 118, 2004 N.D. LEXIS 293 (N.D. 2004).

Judgment Improper.

A clause in the declaratory judgment, stating that an insurance company had not waived and was not estopped from asserting defenses it had against the settlement judgment, was improper. Dundee Mut. Ins. Co. v. Balvitsch, 540 N.W.2d 609, 1995 N.D. LEXIS 219 (N.D. 1995).

Where medical malpractice insurer conceded its duty to defend and indemnify physician on patient’s negligence claims alleging physician prescribed wrong medications and failed to refer her to a psychiatrist, trial court improperly granted summary judgment to plaintiff on additional claim that physician negligently handled the issue of patient transference by engaging in a sexual relationship with her; plaintiff’s alternative theories of liability were based on intertwined unresolved questions of fact. Midwest Med. Ins. Co. v. Doe, 1999 ND 17, 589 N.W.2d 581, 1999 N.D. LEXIS 19 (N.D. 1999).

Mortgage and Tax Liens.

Where the trial court exercises its discretion to grant an application for a declaratory judgment determining the validity and priority of mortgage and tax liens, it becomes necessary to determine the matter fully. State v. Divide County, 68 N.D. 708, 283 N.W. 184, 1938 N.D. LEXIS 160 (N.D. 1938).

Purpose.

The purpose of declaratory relief under N.D.C.C. ch. 32-23 is to settle uncertainties about rights, status, and other legal relations in an underlying justiciable controversy. Midwest Med. Ins. Co. v. Doe, 1999 ND 17, 589 N.W.2d 581, 1999 N.D. LEXIS 19 (N.D. 1999).

Election challengers who were challenging a school district reorganization election six years earlier could not obtain declaratory relief under N.D.C.C. § 32-23-06, N.D.C.C.§ 32-23-01, and N.D.C.C. § 32-23-02 since the election mooted the issue of its validity. Under N.D.C.C. § 1-02-12, uniform statutes had to be read uniformly and declaratory relief was unavailable because there was no longer a controversy. Brandvold v. Lewis & Clark Pub. Sch. Dist. #161, 2011 ND 185, 803 N.W.2d 827, 2011 N.D. LEXIS 176 (N.D. 2011).

Reviewability of Appeal.

Appeal was reviewable because the court's January 2014 order and subsequent consistent judgment were intended to be a final judgment on all proceedings relating to the lessors' action for declaratory relief; further, the January 2014 judgment dismissing lessee's counterclaim against the lessor also effectively dismissed the lessors' claim against the lessee's president. Funke v. Aggregate Constr., Inc., 2015 ND 123, 863 N.W.2d 855, 2015 N.D. LEXIS 121 (N.D. 2015).

Because the supreme court was remanding for further proceedings, any relief a requester sought was premature, as its decision had to be limited to questions involving existing rights in real controversies; any opinion the supreme court could issue on the merits of the requested declaratory relief would be advisory. Kuntz v. Bureau of Crim. Investigation, 2019 ND 46, 923 N.W.2d 513, 2019 N.D. LEXIS 53 (N.D. 2019).

Collateral References.

Declaratory Judgment 5-8.

26 C.J.S. Declaratory Judgments, §§ 11-13.

Law Reviews.

North Dakota Supreme Court Review (Nodak Mutual Insurance Co. v. Wamsley), 81 N.D. L. Rev. 585 (2005).

32-23-07. Review of declaratory judgment.

All orders, judgments, and decrees under this chapter may be reviewed as other orders, judgments, and decrees.

Source:

S.L. 1923, ch. 237, § 7; 1925 Supp., § 7712a7; R.C. 1943, § 32-2307.

Notes to Decisions

Failure to Appeal.

Unless appeal is perfected within the time allotted by statute, the judgment entered in a declaratory judgment proceeding becomes res judicata. Bronson v. Johnson, 76 N.D. 122, 33 N.W.2d 819, 1948 N.D. LEXIS 65 (N.D. 1948).

County court order of declaratory judgment construing decedent’s will to devise half-section of land owned at his death to respondent was not merely an interlocutory order, but issues decided became res judicata when no timely appeal was perfected. In re Estate of Bjerke, 181 N.W.2d 126, 1970 N.D. LEXIS 144 (N.D. 1970).

Order Not Appealable.

Insurance companies’ appeal in a declaratory judgment action from an order granting partial summary judgment was dismissed because the order granting partial summary judgment was not intended to be a final order or final determination on the merits and was not appealable under N.D.C.C. § 28-27-02. Ziegler v. Meadowbrook Ins. Group, 2009 ND 192, 774 N.W.2d 782, 2009 N.D. LEXIS 200 (N.D. 2009).

Because the supreme court was remanding for further proceedings, any relief a requester sought was premature, as its decision had to be limited to questions involving existing rights in real controversies; any opinion the supreme court could issue on the merits of the requested declaratory relief would be advisory. Kuntz v. Bureau of Crim. Investigation, 2019 ND 46, 923 N.W.2d 513, 2019 N.D. LEXIS 53 (N.D. 2019).

Probate Judgment.

Judgment rendered by county court in a probate matter is not reviewable by writ of error, and must be appealed to the district court. In re Rusch's Estate, 62 N.D. 138, 241 N.W. 789, 1932 N.D. LEXIS 158 (N.D. 1932).

Reviewability of Appeal.

Appeal was reviewable because the court's January 2014 order and subsequent consistent judgment were intended to be a final judgment on all proceedings relating to the lessors' action for declaratory relief; further, the January 2014 judgment dismissing lessee's counterclaim against the lessor also effectively dismissed the lessors' claim against the lessee's president. Funke v. Aggregate Constr., Inc., 2015 ND 123, 863 N.W.2d 855, 2015 N.D. LEXIS 121 (N.D. 2015).

Standards on Review.

Review of a judgment declaratory in nature is carried out under the same standards of review as used in any other case. American Hardware Mut. Ins. Co. v. Dairyland Ins. Co., 304 N.W.2d 687, 1981 N.D. LEXIS 272 (N.D. 1981).

Collateral References.

Declaratory Judgment 392-395.

22A Am Jur 2d Declaratory Judgments § 254.

26 C.J.S. Declaratory Judgments, §§ 160-162.

32-23-08. Supplemental relief.

Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application is deemed sufficient, the court, on reasonable notice, shall require any adverse party whose rights have been adjudicated by the declaratory judgment or decree to show cause why further relief should not be granted forthwith.

Source:

S.L. 1923, ch. 237, § 8; 1925 Supp., § 7712a8; R.C. 1943, § 32-2308.

Notes to Decisions

Attorney Fees.

In a declaratory judgment action brought by an insurance company to determine coverage, it was not error to award the attorney fees and costs incurred by plaintiff in defending a declaratory judgment action brought by his insurer. If an insured is not awarded attorney fees as supplemental relief, he is effectively denied the benefit he bargained for in the insurance policy. State Farm Fire & Casualty Co. v. Sigman, 508 N.W.2d 323, 1993 N.D. LEXIS 198 (N.D. 1993).

Pursuant to N.D.C.C. § 32-23-08, an insured who prevailed in a declaratory relief action was entitled to reimbursement of its attorneys’ fees despite the absence of any finding of bad faith on the part of the insurer in its denial of coverage. The award is based upon the principle that insureds should be made whole, not on a desire to deter bad acts by insurers, which principle applies even if an insurer denies coverage in good faith, since even a good faith denial that leads to litigation forces the insured to spend money litigating the issue of coverage. R.D. Offutt Co. v. Lexington Ins. Co., 494 F.3d 668, 2007 U.S. App. LEXIS 16931 (8th Cir. N.D. 2007).

Reviewability of Appeal.

Appeal was reviewable because the court's January 2014 order and subsequent consistent judgment were intended to be a final judgment on all proceedings relating to the lessors' action for declaratory relief; further, the January 2014 judgment dismissing lessee's counterclaim against the lessor also effectively dismissed the lessors' claim against the lessee's president. Funke v. Aggregate Constr., Inc., 2015 ND 123, 863 N.W.2d 855, 2015 N.D. LEXIS 121 (N.D. 2015).

Separation of Powers.

Although the district court’s determination that the statutory method for distributing funding for education, as a whole, is unconstitutional was sustained, the district court erred in mandating specific actions to be taken by the governor, the superintendent of public instruction, and the legislative assembly and its leaders, and in retaining jurisdiction to monitor and enforce compliance with its decision. The procedure for a declaratory judgment provides an adequate alternative to the court’s retention of jurisdiction. Bismarck Pub. Sch. Dist. #1 v. State, 511 N.W.2d 247, 1994 N.D. LEXIS 26 (N.D. 1994).

When Relief Granted.

Where coercive or executory relief ancillary or supplemental to declaratory relief is warranted by the facts alleged in the complaint, such relief may be granted when prayed for if the facts are established as alleged. Great N. Ry. v. Mustad, 76 N.D. 84, 33 N.W.2d 436, 1948 N.D. LEXIS 61 (N.D. 1948).

Collateral References.

Declaratory Judgment 391.

22A Am. Jur. 2d, Declaratory Judgments, §§ 258, 259.

26 C.J.S. Declaratory Judgments, § 159.

32-23-09. Trial of issue of fact.

When a proceeding under this chapter involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.

Source:

S.L. 1923, ch. 237, § 9; 1925 Supp., § 7712a9; R.C. 1943, § 32-2309.

Notes to Decisions

Insurance Contract.

In a declaratory judgment action filed by automobile liability insurer, the trial court’s refusal to decide whether the son of the owner had been driving with the owner’s permission was reversible error, since determination of the issue was necessary to determine the insuror’s duty to defend or indemnify the vehicle owner. Midwest Cas. Ins. Co. v. Whitetail, 1999 ND 133, 596 N.W.2d 341, 1999 N.D. LEXIS 153 (N.D. 1999).

Collateral References.

Declaratory Judgment 10, 341-347, 361-369.

22A Am. Jur. 2d, Declaratory Judgments, § 237.

26 C.J.S. Declaratory Judgments, §§ 15, 145-154.

Burden of proof, 23 A.L.R.2d 1243.

Right to jury trial in action for declaratory relief in state court, 33 A.L.R.4th 146.

32-23-10. Costs.

In any proceeding under this chapter, the court may make such award of costs as may seem equitable and just.

Source:

S.L. 1923, ch. 237, § 10; 1925 Supp., § 7712a10; R.C. 1943, § 32-2310.

Collateral References.

22A Am. Jur. 2d, Declaratory Judgments, §§ 260-263.

32-23-11. Parties.

When declaratory relief is sought, all persons who have or claim any interest that would be affected by the declaration must be made parties, and a declaration may not prejudice the rights of persons not parties to the proceeding. In any proceeding that involves the validity of a municipal ordinance or franchise, the municipality must be made a party, and is entitled to be heard, and if the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state must be served with a copy of the proceeding and is entitled to be heard. Any trade or professional association authorized to do, and doing, business in the state and whose members are licensed and regulated by state or federal agencies has standing to bring an action for declaratory judgment to determine any question of construction or validity of any statute, ordinance, resolution, rule, or regulation that threatens to injure its members.

Source:

S.L. 1923, ch. 237, § 11; 1925 Supp., § 7712a11; R.C. 1943, § 32-2311; 1999, ch. 305, § 1.

Notes to Decisions

Abortion Law.
—Standing to Challenge.

Although no actual case was before the court, physician had standing to challenge abortion law which interfered with his practice of medicine and his relationship with his patients, and he was not required to risk becoming a test case in a criminal prosecution. Leigh v. Olson, 385 F. Supp. 255, 1974 U.S. Dist. LEXIS 11881 (D.N.D. 1974).

Initiation of Action by Attorney General.

This section provides the attorney general with notice and a right to be heard, nothing more; it does not entitle him to be made a party to the proceedings, or give him some special authority to initiate litigation under it. State ex rel. Olson v. Graff, 287 N.W.2d 87, 1979 N.D. LEXIS 338 (N.D. 1979).

Property Owner Not a Party.

The trial court could not have finally fixed the option price for real estate because one of the present owners was not a party to the counterclaim for such a declaratory judgment; therefore, the trial court was correct in denying a declaratory judgment about the option price for the property. Wilhite v. Central Inv. Properties, 409 N.W.2d 348, 1987 N.D. LEXIS 360 (N.D. 1987).

Where an option contract had not been breached, and the assignee’s failure to make one of the owners of the property a party defendant prevented the trial court from fixing the option price, the assignee was not entitled to restitution. Wilhite v. Central Inv. Properties, 409 N.W.2d 348, 1987 N.D. LEXIS 360 (N.D. 1987).

District court erred in determining ownership of the surface estate where the successors-in-interest had sued to quiet title the minerals underlying the property, and the United States, which had acquired the surface rights from the predecessor owners, was not a party to the declaratory judgment proceeding. Wilkinson v. Bd. of Univ. & Sch. Lands, 2017 ND 231, 903 N.W.2d 51, 2017 N.D. LEXIS 235 (N.D. 2017).

Public Officers.

When declaratory judgment which involves the validity or construction of a statute is sought, and it affects the powers and duties of public officers, such officers should be made parties to the action or proceeding in which the relief is sought. LANGER v. STATE, 69 N.D. 129, 284 N.W. 238, 1939 N.D. LEXIS 137 (N.D. 1939).

Reviewability of Appeal.

Appeal was reviewable because the court's January 2014 order and subsequent consistent judgment were intended to be a final judgment on all proceedings relating to the lessors' action for declaratory relief; further, the January 2014 judgment dismissing lessee's counterclaim against the lessor also effectively dismissed the lessors' claim against the lessee's president. Funke v. Aggregate Constr., Inc., 2015 ND 123, 863 N.W.2d 855, 2015 N.D. LEXIS 121 (N.D. 2015).

State As Party.

Joinder of state as defendant in proceedings against poultry improvement board for declaratory judgment of rights, status, and other legal relations of licensees is unnecessary so long as attorney general is served with copy of proceedings and permitted to be heard at trial. Ralston Purina Co. v. Hagemeister, 188 N.W.2d 405, 1971 N.D. LEXIS 156 (N.D. 1971).

State had interest in action for declaration that insurance policy was void ab initio since, if policy was found void, the unsatisfied judgment fund might be exposed to liability; therefore state was entitled to have attorney general appear and represent it under section 54-12-01 although it had not been named as a party. Farmers Ins. Exch. v. Nagle, 190 N.W.2d 758, 1971 N.D. LEXIS 116 (N.D. 1971).

Sufficient Parties.

It is sufficient if the determination on declaratory judgment be res judicata between all parties who have a claim or interest in the contract affected. G. W. Jones Lumber Co. v. Marmarth, 67 N.D. 309, 272 N.W. 190, 1937 N.D. LEXIS 84 (N.D. 1937).

Although all persons whose safety was promoted by former statute requiring full crew on self-propelled rail vehicles were affected by or interested in the construction and application of the statute, as were law enforcement officers, such parties were not necessary parties to declaratory judgment proceedings. Northern Pac. Ry. v. Warner, 77 N.D. 721, 45 N.W.2d 196 (1950).

Collateral References.

Declaratory Judgment 291-306.

22A Am. Jur. 2d, Declaratory Judgments, §§ 207 et seq.

26 C.J.S. Declaratory Judgments, §§ 123-135.

Parties: construction, application, and effect of § 11 of the Uniform Declaratory Judgments Act that all persons who have or claim any interest which would be affected by the declaration shall be made parties, 71 A.L.R.2d 723.

Criminal statutes: validity, construction, and application of criminal statutes or ordinances as proper subject for declaratory judgment, 10 A.L.R.3d 727.

32-23-12. Construction of chapter.

This chapter is remedial. Its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and it is to be construed and administered liberally.

Source:

S.L. 1923, ch. 237, § 12; 1925 Supp., § 7712a12; R.C. 1943, § 32-2312.

Notes to Decisions

Exhaustion of Administrative Remedies.

Plaintiff does not have to exhaust administrative remedies before court can grant declaratory relief based upon interpretation of unambiquous statute, because interpretation of an unambiguous statute is not an issue generally reserved to an administrative decisionmaker. Medcenter One v. North Dakota State Bd. of Pharm., 1997 ND 54, 561 N.W.2d 634, 1997 N.D. LEXIS 54 (N.D. 1997).

Justiciable Controversy.

Justiciable controversy existed between defendants and each plaintiff in action testing validity of statute governing conflict of interests of legislators in light of great importance of case and in light of this section, notwithstanding that some plaintiffs were not members of legislature. Melland v. Johanneson, 160 N.W.2d 107, 1968 N.D. LEXIS 64 (N.D. 1968).

In a suit brought by a condominium association against a pet owner for failing to comply with the association’s pet restrictions, the trial court did not err in its judgment regarding the Federal Fair Housing Act, or the North Dakota Fair Housing Act, in which it found that pet owner did not have a valid claim for an accommodation under the Fair Housing Act and that it would not honor any future claim unless the pet owner’s health changed significantly. Although pet owner claimed there was no justiciable controversy as to a claim for accommodation under the Fair Housing Act, the trial court found that there was a controversy since he had asserted a right to a housing act accommodation in his answer and, despite trying to remove it as an issue in the case, he tried to reserve the issue for future decision, by continuing to assert a right to make such a claim in the future. Riverside Park Condos. Unit Owners Ass'n v. Lucas, 2005 ND 26, 691 N.W.2d 862, 2005 N.D. LEXIS 26 (N.D. 2005).

Because the supreme court was remanding for further proceedings, any relief a requester sought was premature, as its decision had to be limited to questions involving existing rights in real controversies; any opinion the supreme court could issue on the merits of the requested declaratory relief would be advisory. Kuntz v. Bureau of Crim. Investigation, 2019 ND 46, 923 N.W.2d 513, 2019 N.D. LEXIS 53 (N.D. 2019).

Liberal Construction.

Declaratory Judgment Act is by its own terms remedial and is to be construed and administered liberally. Iverson v. Tweeden, 78 N.D. 132, 48 N.W.2d 367, 1951 N.D. LEXIS 79 (N.D. 1951).

The application of this statute is not confined to the construction of formal writings. Iverson v. Tweeden, 78 N.D. 132, 48 N.W.2d 367, 1951 N.D. LEXIS 79 (N.D. 1951).

The Declaratory Judgment Act is remedial and is to be liberally construed and administered. In Interest of McMullen, 470 N.W.2d 196, 1991 N.D. LEXIS 85 (N.D. 1991).

Petition for Declaratory Relief.

Where prison inmate claimed continuing, as well as past, violation of his rights to receive medical care, declaratory relief was available, and may have been appropriate, and his petition should not have been dismissed for failure to state a claim in so far as it sought such relief. Ennis v. Dasovick, 506 N.W.2d 386, 1993 N.D. LEXIS 168 (N.D. 1993).

Purpose of Declaratory Relief.

The purpose of declaratory relief is to settle uncertainties about rights, status, and other legal relations in an underlying justiciable controversy. In Interest of McMullen, 470 N.W.2d 196, 1991 N.D. LEXIS 85 (N.D. 1991).

Reviewability of Appeal.

Appeal was reviewable because the court's January 2014 order and subsequent consistent judgment were intended to be a final judgment on all proceedings relating to the lessors' action for declaratory relief; further, the January 2014 judgment dismissing lessee's counterclaim against the lessor also effectively dismissed the lessors' claim against the lessee's president. Funke v. Aggregate Constr., Inc., 2015 ND 123, 863 N.W.2d 855, 2015 N.D. LEXIS 121 (N.D. 2015).

32-23-13. Definition of person.

The word “person”, wherever used in this chapter, shall be construed to mean any person, partnership, limited liability company, joint-stock company, unincorporated association, or society, or municipal or other corporation of any character whatsoever.

Source:

S.L. 1923, ch. 237, § 13; 1925 Supp., § 7712a13; R.C. 1943, § 32-2313; S.L. 1993, ch. 54, § 106.

CHAPTER 32-24 Certification of Question of Law to Supreme Court [Repealed]

[Superseded by N.D.R.App.P. 47.1]

CHAPTER 32-25 Conversion of Grain by Public Warehouse

32-25-01. Who may bring action — Effect.

If the grain of different owners has been stored in a warehouse or elevator and has become mingled in a common mass, and any part thereof has been converted or is detained wrongfully by any person, the owner of any part of such common mass may maintain an action against the wrongdoer for the recovery of the possession or the value, as the case may be, of the quantity of such person’s contribution to such common mass. It shall not be necessary to join as a party any other person who likewise may have contributed, or be alleged to have contributed, to such common mass, but the commencement of such action shall be deemed to be a selection or segregation of such person’s interest, in all things the same as though, upon a demand made therefor, such grain or the value thereof had been set aside and delivered to such party.

Source:

S.L. 1923, ch. 330, § 1; 1925 Supp., § 3125b1; R.C. 1943, § 32-2501.

Notes to Decisions

Holder of Security Interest.

The district court abused its discretion in excluding the defendant’s evidence relating to the commingling of corn delivered to its elevator as this evidence was relevant to the issue of damages, in a conversion action by the holder of a security interest. Dakota Bank & Trust Co. v. Brakke, 404 N.W.2d 438, 1987 N.D. LEXIS 297 (N.D. 1987).

32-25-02. Consolidation of action.

In case two or more persons shall have brought separate actions against the same defendant to recover the value or possession of different amounts of such common mass, the court in which such actions are pending, in its discretion, may consolidate such actions and dispose of them as justice and equity shall require.

Source:

S.L. 1923, ch. 330, § 1; 1925 Supp., § 3125b1; R.C. 1943, § 32-2502.

32-25-03. Storage tickets prima facie evidence.

In any action involving the ownership or right of possession of stored grain, the storage tickets or warehouse receipts issued by any public warehouseman or grain dealer who commonly receives such grain for storage, in substantially the form prescribed by statute, shall be received in evidence, and shall be prima facie evidence that grain of the kind and quantity recited therein was received by such warehouseman at about the date of such ticket, and that the same was the property of the person named in said receipt as having deposited the same.

Source:

S.L. 1923, ch. 330, § 2; 1925 Supp., § 3125b2; R.C. 1943, § 32-2503.

Notes to Decisions

Assignment of Tickets.

Proof of the assignment of storage tickets to a bank supported a judgment for the bank for conversion by the sheriff levying thereon. Baird v. Hanson, 55 N.D. 836, 215 N.W. 538, 1927 N.D. LEXIS 173 (N.D. 1927).

32-25-04. How value of grain may be proved.

In any action brought under the provisions of this chapter, it shall be permissible to prove the value of the grain in question by any of the following classes of evidence:

  1. By market reports published in any newspaper or trade journal which commonly publishes such reports, purporting to give market values or selling prices of such grain at the market in question. No further foundation for the introduction of such reports in evidence shall be necessary than the showing that such newspaper or journal is in circulation as such or is commonly sold at public newsstands, and the court may take judicial notice of the character and circulation of such newspaper or journal without proof.
  2. The buying and selling price of similar grain may be shown by the records of any chamber of commerce, board of trade, or similar organization which is shown to keep a record of permanent character of the prices at which such, or similar grain, is sold in the market at which such organization is situated.
  3. A witness engaged in the business of buying or selling grain likewise may testify to the value of grain at any given market at any given time, upon showing the witness’s knowledge thereof, and for the purpose of refreshing the witness’s recollection such witness may examine and consider the permanent records of sales or purchases made in the regular course of business of such witness or the firm or concern with which the witness is or was connected.

Source:

S.L. 1923, ch. 330, § 3; 1925 Supp., § 3125b3; R.C. 1943, § 32-2504.

Notes to Decisions

Defendant’s Manager As Witness.

Permitting plaintiff to call defendant’s manager as an adverse witness over the objection that defendant’s expert witness could not be examined as an expert to prove plaintiff’s case is proper. Sax Motor Co. v. Belfield Farmers' Union Elevator Co., 62 N.D. 727, 245 N.W. 488, 1932 N.D. LEXIS 238 (N.D. 1932).

Reports and Bulletins.

Grain buyer’s testimony as to market value at distant city was not hearsay merely because he based it upon his knowledge of the grain business generally, and upon information received by him through telegraphic reports and bulletin cards sent out by the chamber of commerce. Huether v. McCaull-Dinsmore Co., 52 N.D. 721, 204 N.W. 614, 1925 N.D. LEXIS 137 (N.D. 1925), overruled in part, Sollin v. Wangler, 2001 ND 96, 627 N.W.2d 159, 2001 N.D. LEXIS 104 (N.D. 2001); Baird v. Stephens, 58 N.D. 812, 228 N.W. 212, 1929 N.D. LEXIS 284 (N.D. 1929).

Witness Engaged in Business.

Testimony of manager of grain elevator company having houses throughout the state was competent and sufficient to establish value of grain. Farmers' State Bank v. Jeske, 50 N.D. 813, 197 N.W. 854, 1924 N.D. LEXIS 34 (N.D. 1924).

32-25-05. Method of proof of value of grain not exclusive.

The methods of proof herein provided for shall not be exclusive but cumulative, and shall be taken and received together with any other competent evidence tending to establish the value in question.

Source:

S.L. 1923, ch. 330, § 4; 1925 Supp., § 3125b4; R.C. 1943, § 32-2505.

CHAPTER 32-26 Administration of Assignment for Benefit of Creditors

32-26-01. District court has supervision.

When any person, partnership, corporation, or limited liability company in this state shall make an assignment for the benefit of creditors, or a trust deed, or the whole or any substantial part of the property of such person, partnership, corporation, or limited liability company, the same shall be administered under the supervision of the district court.

Source:

S.L. 1921, ch. 18, § 1; 1925 Supp., § 8442a1; R.C. 1943, § 32-2601; S.L. 1993, ch. 54, § 106.

Notes to Decisions

Custody of Receiver.

Assignment for benefit of creditors does not place the assignor’s property in the custody of the law. State ex rel. Enderlin State Bank v. Rose, 4 N.D. 319, 58 N.W. 514, 1894 N.D. LEXIS 16 (N.D. 1894).

Definitions.

Terms “assignment for the benefit of creditors” and “trust deed” used in this statute are synonymous. Phillips v. Phillips, 53 N.D. 66, 204 N.W. 985, 1925 N.D. LEXIS 57 (N.D. 1925).

Exempt Property.

General assignment which, in general terms, excepts exempt property is a valid general assignment for the benefit of creditors. Bangs v. Fadden, 5 N.D. 92, 64 N.W. 78, 1895 N.D. LEXIS 16 (N.D. 1895).

Mortgage.

The giving of a mortgage to creditors by an insolvent debtor does not constitute an assignment for the benefit of creditors. Cutter v. Pollock, 4 N.D. 205, 59 N.W. 1062, 1894 N.D. LEXIS 29 (N.D. 1894).

Preference of Creditors.

The giving of a mortgage, quitclaim deed, and bill of sale to secure one creditor was merely a preference of creditor secured, and not an assignment for the benefit of creditors. Phillips v. Phillips, 53 N.D. 66, 204 N.W. 985, 1925 N.D. LEXIS 57 (N.D. 1925).

Purpose of Statute.

Purpose of this statute is not to prevent a preference of any one or more of an insolvent’s creditors, but to safeguard the administration of general assignment in the interest of economical and fair distribution. Phillips v. Phillips, 53 N.D. 66, 204 N.W. 985, 1925 N.D. LEXIS 57 (N.D. 1925).

Trust.

Assignment under this statute does not constitute either an insolvency or a bankruptcy, but creates a mere trust. State ex rel. Enderlin State Bank v. Rose, 4 N.D. 319, 58 N.W. 514, 1894 N.D. LEXIS 16 (N.D. 1894).

DECISIONS UNDER PRIOR LAW

Voluntary Assignment.

Whenever an insolvent debtor made a general disposition of all his property and effects, whether to all or only a part of his creditors, thereby abandoning his business or putting himself in such a situation that it was impossible for him to continue in it, he made a voluntary assignment. Straw v. Jenks, 43 N.W. 941, 6 Dakota 414, 1889 Dakota LEXIS 36 (Dakota 1889).

So long as the instrument employed by the debtor, whatever it be called, worked an absolute transfer of substantially all the property and effects of the insolvent from him to another or others with a design on his part that it should do so, and that his connection with the business should cease, it was a voluntary assignment on his part. Straw v. Jenks, 43 N.W. 941, 6 Dakota 414, 1889 Dakota LEXIS 36 (Dakota 1889).

Collateral References.

Assignments for Benefit of Creditors 218.

6 Am. Jur. 2d, Assignments for Benefit of Creditors, §§ 4, 5.

6A C.J.S. Assignments for Benefit of Creditors, § 86.

32-26-02. Public administrator as receiver.

The making of an assignment shall be cause for the appointment of a receiver of the property of the assignor, and the public administrator of the county wherein the greater part of the assets of such assignor shall be situated, either on the public administrator’s own petition or on the petition of any creditor of the assignor, shall be appointed receiver of the property of such assignor, and shall proceed to administer and distribute the same in the place and stead of the assignee named in such assignment, and, as nearly as may be, in accordance with the terms and provisions of such assignment, under the supervision of the district court.

Source:

S.L. 1921, ch. 18, § 2; 1925 Supp., § 8442a2; R.C. 1943, § 32-2602.

32-26-03. When property in several counties.

When the property of the assignor is situated in different counties, the public administrator of any county wherein a portion of such property is situated, first petitioning, shall be entitled to be appointed receiver as aforesaid, but the court thereafter on the petition of any creditor or public administrator, and on the facts being shown to its satisfaction, shall vacate such appointment and shall appoint as receiver the public administrator of the county wherein the greater part of the assignor’s property is situated.

Source:

S.L. 1921, ch. 18, § 3; 1925 Supp., § 8442a3; R.C. 1943, § 32-2603.

32-26-04. When assignee may act.

In case of failure of any creditor or public administrator to apply for the appointment of a receiver as herein provided, the estate may be administered by the assignee appointed in the assignment, but shall be administered and distributed under the supervision of the district court.

Source:

S.L. 1921, ch. 18, § 4; 1925 Supp., § 8442a4; R.C. 1943, § 32-2604.

32-26-05. Sales — Fees and expenses — Subject to approval of court.

Property of an estate shall be sold only subject to the confirmation of the district court, on petition of the receiver or assignee, and on such notice as the court may fix. The fees and expenses of all officers and employees shall be under the control of the court, and shall not be paid by the receiver or assignee until approved by the court. Any transfer of any property by any assignee or trustee or receiver shall be void unless the same shall have been approved by the judge of the district court before whom such matter should be pending.

Source:

S.L. 1921, ch. 18, § 5; 1925 Supp., § 8442a5; R.C. 1943, § 32-2605.

Notes to Decisions

Failure to Settle Account.

It is error for the court to render final judgment without passing upon the receiver’s account, and settling all matters connected with the receivership. Cutter v. Pollock, 4 N.D. 205, 59 N.W. 1062, 1894 N.D. LEXIS 29 (N.D. 1894).

Indemnity of Receiver.

Generally the receiver should be protected by being permitted to look to the funds in his hands to save him against loss, but in cases of great hardship he may be compelled to look for indemnity to the party at whose instance he was appointed. Cutter v. Pollock, 4 N.D. 205, 59 N.W. 1062, 1894 N.D. LEXIS 29 (N.D. 1894).

Collateral References.

Propriety of sale of trust assets without consent despite trust provision requiring consent, 39 A.L.R.4th 158.

32-26-06. What court has jurisdiction — Transfer.

The district court of any county where any property of the assignor may be situated shall have jurisdiction to entertain proceedings in accordance with the provisions of this chapter, but may transfer, and on the showing of facts to its satisfaction shall transfer, such proceedings to the district court of the county wherein the greater part of the assignor’s property is situated.

Source:

S.L. 1921, ch. 18, § 6; 1925 Supp., § 8442a6; R.C. 1943, § 32-2606.

CHAPTER 32-27 Establishing Citizenship

32-27-01. Where proceeding maintained.

Any citizen of this state may maintain a proceeding in accordance with this chapter in the district court of the county in which the person resides for the purpose of establishing the fact that the person is a citizen of the state of North Dakota.

Source:

S.L. 1941, ch. 235, § 2; R.C. 1943, § 32-2701.

Cross-References.

Who are citizens, see N.D.C.C. § 54-01-21.

32-27-02. How proceeding instituted — Contents of petition.

Such proceeding shall be instituted by the filing of a petition with the clerk of the district court of the county in which the petitioner resides, setting forth:

  1. That the petitioner is a resident of and resides within the state of North Dakota.
  2. That the petitioner is a citizen of the United States of America.
  3. The place and date of birth of the petitioner.
  4. If the petitioner was born within the United States of America, whether or not the petitioner’s parents were transient aliens or alien public ministers or consuls.
  5. If the petitioner was born without the boundaries of the territorial United States of America, facts sufficient to show that the petitioner is a citizen of the United States of America, and the basis upon which citizenship rests.

Source:

S.L. 1941, ch. 235, § 3; R.C. 1943, § 32-2702.

32-27-03. Notice to be given by clerk of the district court.

Upon the filing of a petition of the kind described in this chapter, the clerk of the district court with whom such petition is filed shall issue a notice under the seal of the said district court fixing the time and place for the hearing upon such petition. Such notice shall be published in the official newspaper of the county for three successive weeks, the last publication to be at least ten days before the time set for the hearing. A copy of such notice and of such petition shall be served upon the attorney general and upon the state’s attorney of the county of which the petitioner is a resident at least thirty days before the time set for the hearing. Proof of the publication and service required by this section shall be filed in the office of the clerk of the district court on or before the date set for the hearing on such petition.

Source:

S.L. 1941, ch. 235, § 4; R.C. 1943, § 32-2703.

32-27-04. Hearing — Who may appear — Duty of attorney general and state’s attorney.

Any citizen of the state may appear at the hearing provided for in this chapter and shall be heard in favor of or in opposition to the petition. The attorney general, if the attorney general has reason to believe that the petitioner is not a bona fide citizen of the state of North Dakota or of the United States of America, shall appear at the hearing in opposition to the petition. The attorney general, if the attorney general has any doubt relative to the citizenship of the petitioner, shall secure any information required for such hearing from any department of the government of the United States of America. The state’s attorney of the county in which the proceeding is pending shall appear at any hearing on a petition filed under the provisions of this chapter.

Source:

S.L. 1941, ch. 235, § 5; R.C. 1943, § 32-2704.

32-27-05. Judgment.

If, after the hearing, the court is satisfied that the petitioner is a bona fide citizen of the state of North Dakota, it shall make appropriate findings of fact and conclusions of law and shall order a judgment to that effect and such judgment shall be entered in the office of the clerk of the district court upon such order. If the court is not satisfied that the petitioner is a bona fide citizen of the state of North Dakota, it shall make appropriate findings of fact and conclusions of law and shall order the entry of a judgment denying the petition, and a judgment shall be entered upon such order reciting the dismissal and denial of the petition. A judgment establishing the citizenship of a petitioner shall be entitled to full faith and credit in the same manner as any other judgment of the courts of this state.

Source:

S.L. 1941, ch. 235, § 6; R.C. 1943, § 32-2705.

32-27-06. Appeal.

The petitioner may appeal to the supreme court from a judgment of the district court denying the petition for the establishment of citizenship. Notice of such appeal must be served upon the attorney general and upon the state’s attorney of the county of which the petitioner is a resident. The attorney general or the state’s attorney of the county of which the petitioner is a resident may appeal to the supreme court from a judgment of the district court establishing citizenship. Notice of such appeal shall be given to the petitioner. An appeal under this section must be taken within thirty days after the entry of a judgment establishing citizenship or denying and dismissing the petition for the establishment of citizenship and shall be heard by the supreme court in the same manner as other appeals from actions tried by the district court without a jury. If the appeal under this section is taken by the attorney general or state’s attorney, no appeal bond shall be required.

Source:

S.L. 1941, ch. 235, § 7; R.C. 1943, § 32-2706.

CHAPTER 32-28 Change of Names of Persons and Places

32-28-01. Court authorized to change name of persons and cities.

The district court shall have the authority to change the names of persons and cities within this state.

Source:

C. Civ. P. 1877, § 734; R.C. 1895, § 6149; R.C. 1899, § 6149; R.C. 1905, § 7861; C.L. 1913, § 8496; R.C. 1943, § 32-2801; S.L. 1967, ch. 323, § 96.

32-28-02. Change of name of person — Petition — Criminal history record checks — Exceptions.

  1. Any person desiring to change that person’s name may file a petition in the district court of the county in which the person is a resident, setting forth:
    1. That the petitioner is a citizen or permanent resident alien of the United States.
    2. That the petitioner has been a bona fide resident of the county for at least six months before the filing of the petition.
    3. The reason for which the change of the petitioner’s name is sought.
    4. The name requested.
  2. When an individual files a petition for a name change, the court shall determine whether the petitioner has a criminal history in this state or any other state. The court may require the petitioner to submit to a statewide and nationwide criminal history record check. The criminal history record check must be conducted in the manner provided for in section 12-60-24. All costs associated with the criminal history record check are the responsibility of the petitioner. This subsection does not apply to a request for a name change as part of an application for a marriage license under section 14-03-20, to a request for a name change in conjunction with the annulment of a marriage under chapter 14-04 or the dissolution or separation of a marriage under chapter 14-05, or to the change of a minor’s name unless the court has reason to believe the request is being made to defraud or mislead, is not being made in good faith, will cause injury to an individual, or will compromise public safety. If the individual petitioning for a name change has a felony conviction under a law of this state or a law of another state or the federal government, the request is presumed to be made in bad faith, to defraud or mislead, to cause injury to an individual, or to compromise public safety. The name change may not be granted unless the individual requesting the name change proves by clear and convincing evidence that the request is not based upon an intent to defraud or mislead, is made in good faith, will not cause injury to an individual, and will not compromise public safety.
  3. The judge of the district court, upon being duly satisfied by affidavit or proof in open court of the truth of the allegations set forth in the petition, that there exists proper and reasonable cause for changing the name of the petitioner, and that thirty days’ previous notice of the intended application has been given in the official newspaper of the county in which the petitioner resides, shall order a change of the name of the petitioner. Proper and reasonable cause does not exist if the court determines that the request for a name change is made to defraud or mislead, is not made in good faith, will cause injury to an individual, or will compromise public safety. The court may waive publication of the notice when the proposed change relates only to a first or given name as distinguished from a surname or upon evidence satisfactory to the court that the petitioner has been the victim of domestic violence as defined in section 14-07.1-01.
  4. If the person whose name is to be changed is a minor, the court shall consider the appointment of a guardian ad litem, and notice of the intended application must be published in the official newspaper of the county in which the minor resides and, if different, the official newspaper of the county in which each of the minor’s parents reside. If the minor has a noncustodial parent, a copy of the notice must be deposited in a post office in this state, postage prepaid, not later than ten days after the publication of the notice, and directed to the noncustodial parent’s last reasonably ascertained post-office address. An affidavit of mailing of the notice prepared in accordance with the North Dakota Rules of Civil Procedure must be filed with the court.
  5. If the court issues a name change order for a petitioner who has a criminal history in this or any other state, the court, within ten days after the issuance of the change of name order, shall report the name change to the bureau of criminal investigation.
  6. The provisions of this section may not delay the granting of a marriage license under section 14-03-20, which may be granted without the change of name.

Source:

C. Civ. P. 1877, § 735; R.C. 1895, § 6150; R.C. 1899, § 6150; R.C. 1905, § 7862; C.L. 1913, § 8497; R.C. 1943, § 32-2802; S.L. 1973, ch. 262, § 1; 1985, ch. 337, § 18; 1989, ch. 243, § 2; 1999, ch. 306, § 1; 2003, ch. 279, § 1; 2007, ch. 115, § 8; 2015, ch. 243, § 1, eff August 1, 2015.

Derivation:

Harston’s (Cal.) Practice, 1276 to 1278.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 243, S.L. 2015 became effective August 1, 2015.

Notes to Decisions

Change of Name to Number.

Although generally there should be some substantial reason to do so before the court denies a petition for change of name, that principle did not require it to permit a petitioner to change his name to “1069”, and it would not do so. Petition of Dengler, 246 N.W.2d 758, 1976 N.D. LEXIS 151 (N.D. 1976).

Discretion of Trial Court.

A trial court is vested with discretion in reviewing a petition for change of name. The statutory requirement “that there exists proper and reasonable cause for changing the name” clearly vests the trial court with a great degree of judicial discretion. In re Mees, 465 N.W.2d 172, 1991 N.D. LEXIS 2 (N.D. 1991).

While the trial court is granted a great deal of judicial discretion in reviewing a petition for change of name, the discretion afforded to the trial court is not absolute. In re Mees, 465 N.W.2d 172, 1991 N.D. LEXIS 2 (N.D. 1991).

District court did not err in ordering the name change of the child’s surname as it would enhance his sense of belonging and security both at home and at school and prevent confusion and embarrassment to the child and promote a sense of family identity. Hartleib v. Simes, 2009 ND 205, 776 N.W.2d 217, 2009 N.D. LEXIS 217 (N.D. 2009), overruled in part, State v. G.L. (In re G.L.), 2018 ND 176, 915 N.W.2d 685, 2018 N.D. LEXIS 185 (N.D. 2018).

Domestic Relations.

Trial court did not abuse its discretion by dismissing the mother’s petition to change the surname of her minor child to the mother’s new married name; the mother failed to establish proper and reasonable cause to change the name of the child, and if the mother divorced, the child would have to bear the surname of a man to whom she had no legal or biological relationship. Grad v. Jepson, 2002 ND 153, 652 N.W.2d 324, 2002 N.D. LEXIS 195 (N.D. 2002).

Because a father had failed to show that there was proper and reasonable cause for changing the last name of a child, N.D.C.C. § 32-28-02, and there was no showing that the change would have been in the child’s best interests, the father’s petition to change the child’s last name was properly denied. Berger v. Myhre (In re Berger), 2010 ND 28, 778 N.W.2d 579, 2010 N.D. LEXIS 31 (N.D. 2010).

District court properly granted a mother's petition to change the surname of the parties' child because the district court did not err in including the father's request for paternity in its analysis of the child's best interest, the social stigma associated with the father's sex offence was relevant in the court's analysis of the child's best interests, the mother provided proper notice of the name-change petition, including physical publication in both counties and mailing notice to the father at the state penitentiary, and the district court allowed the father to appear at the name-change hearing telephonically or through ITV if he made all of the necessary arrangements himself. L.Z.N. v. Narvais, 2017 ND 137, 895 N.W.2d 747, 2017 N.D. LEXIS 139 (N.D. 2017).

Hearing.

This section does not require an evidentiary hearing in conjunction with a petition for change of name. In re Mees, 465 N.W.2d 172, 1991 N.D. LEXIS 2 (N.D. 1991).

“Name” Defined.

A “name” generally, and at common law, consists of a Christian or given name and a patronymic or family name; it is a characterization in words used to distinguish one person from others; it was in this sense that the legislature used the word in the context of this section, and it did not intend that it should be possible to change one’s name to a number; therefore, the court would deny petitioner’s request to change his name to “1069”. Petition of Dengler, 246 N.W.2d 758, 1976 N.D. LEXIS 151 (N.D. 1976).

Standard of Review.

While the general standard of review for name change petitions under N.D.C.C. § 32-28-02 remains the abuse-of-discretion standard, a district court’s findings on the best interests of a child when deciding a petition to change the name of a minor child are subject to the clearly erroneous standard of review under N.D.R.Civ.P. 52(a). Berger v. Myhre, 2010 ND 28, 778 N.W.2d 579, 2010 N.D. LEXIS 31 (In re Berger 2010).

Written Findings.

The district court must make findings sufficiently definitive so that on appeal reviewing court can determine whether or not the findings are arbitrary, unreasonable, or unconscionable. In re Mees, 465 N.W.2d 172, 1991 N.D. LEXIS 2 (N.D. 1991).

Requiring written findings delineating the reason(s) for denying a change of name petition is consistent with legislation which has expanded civil rights retained by convicts. In re Mees, 465 N.W.2d 172, 1991 N.D. LEXIS 2 (N.D. 1991).

Collateral References.

Names 20.

57 Am. Jur. 2d, Name, §§ 16 et seq.

65 C.J.S. Names, §§ 21-28.

Adoption proceeding, change of child’s name in, 53 A.L.R.2d 927.

Married woman, right to use maiden surname, 67 A.L.R.3d 1266.

Rights and remedies of parents inter se with respect to the names of their children, 40 A.L.R.5th 697.

32-28-03. Change of name of city — Petition.

Whenever it may be desirable to change the name of any city in this state, a petition for that purpose may be filed in the district court of the county in which the city is situated, setting forth the reason for the change of name and the name requested. The court may order the change of name, on being satisfied by proof that:

  1. The request of the petitioners is just, proper, and reasonable.
  2. Notice has been provided as required in section 32-28-02.
  3. Two-thirds of the qualified electors of the city, as determined by the vote cast for the office of governor at the last preceding gubernatorial election, have signed such petition expressing their desire that such change of name be granted.
  4. There is no other city in this state with the requested name.

Source:

C. Civ. P. 1877, § 736; R.C. 1895, § 6151; R.C. 1899, § 6151; R.C. 1905, § 7863; C.L. 1913, § 8498; R.C. 1943, § 32-2803; S.L. 1967, ch. 323, § 97; 1985, ch. 235, § 61; 1985, ch. 337, § 19.

Collateral References.

Municipal Corporations 21.

62 C.J.S. Municipal Corporations, § 34.

32-28-04. Costs — Change not to affect rights or pending actions.

All proceedings under this chapter shall be at the cost of the petitioner or petitioners, and judgment may be entered against the petitioner or petitioners for costs as in other civil actions. Any change of name under the provisions of this chapter in no manner shall affect or alter any action or legal proceedings then pending, or any right, title, or interest whatsoever.

Source:

C. Civ. P. 1877, § 737; R.C. 1895, § 6152; R.C. 1899, § 6152; R.C. 1905, § 7864; C.L. 1913, § 8499; R.C. 1943, § 32-2804.

CHAPTER 32-29 Arbitration [Repealed]

[Repealed by S.L. 1987, ch. 408, § 23]

CHAPTER 32-29.1 Arbitration of Medical Malpractice Claims [Repealed]

[Repealed by S.L. 1981, ch. 358, § 1]

CHAPTER 32-29.2 Uniform Arbitration Act [Repealed]

[Repealed by S.L. 2003, ch. 280, § 30]

CHAPTER 32-29.3 Uniform Arbitration Act

32-29.3-01. Definitions.

As used in this chapter:

  1. “Arbitration organization” means an association, agency, board, commission, or other entity that is neutral and initiates, sponsors, or administers in an arbitration proceeding or is involved in the appointment of an arbitrator.
  2. “Arbitrator” means an individual appointed to render an award, alone or with others, in a controversy that is subject to an agreement to arbitrate.
  3. “Court” means the district court.
  4. “Knowledge” means actual knowledge.
  5. “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

Source:

S.L. 2003, ch. 280, § 1.

Collateral References.

Consolidation by State Court of Arbitration Proceedings Brought Under State Law, 31 A.L.R.6th 433.

32-29.3-02. Notice.

  1. Except as otherwise provided in this chapter, a person gives notice to another person by taking action that is reasonably necessary to inform the other person in ordinary course, whether or not the other person acquires knowledge of the notice.
  2. A person has notice if the person has knowledge of the notice or has received notice.
  3. A person receives notice when it comes to the person’s attention or the notice is delivered at the person’s place of residence or place of business, or at another location held out by the person as a place of delivery of such communications.

Source:

S.L. 2003, ch. 280, § 2.

32-29.3-03. When chapter applies.

  1. This chapter governs an agreement to arbitrate made after July 31, 2003.
  2. This chapter governs an agreement to arbitrate made before August 1, 2003, if all the parties to the agreement or to the arbitration proceeding so agree in a record.
  3. After July 31, 2005, this chapter governs an agreement to arbitrate whenever made. Until August 1, 2005, chapter 32-29.2, as it existed on July 31, 2003, applies to agreements made after June 30, 1987.

Source:

S.L. 2003, ch. 280, § 3.

32-29.3-04. Effect of agreement to arbitrate — Nonwaivable provisions.

  1. Except as otherwise provided in subsections 2 and 3, a party to an agreement to arbitrate or to an arbitration proceeding may waive or, the parties may vary the effect of, the requirements of this chapter to the extent permitted by law.
  2. Before a controversy arises that is subject to an agreement to arbitrate, a party to the agreement may not:
    1. Waive or agree to vary the effect of the requirements of subsection 1 of section 32-29.3-05, subsection 1 of section 32-29.3-06, section 32-29.3-08, subsections 1 and 2 of section 32-29.3-17, or section 32-29.3-26 or 32-29.3-28;
    2. Agree to unreasonably restrict the right under section 32-29.3-09 to notice of the initiation of an arbitration proceeding;
    3. Agree to unreasonably restrict the right under section 32-29.3-12 to disclosure of any facts by a neutral arbitrator; or
    4. Waive the right under section 32-29.3-16 of a party to an agreement to arbitrate to be represented by a lawyer at any proceeding or hearing under this chapter, but an employer and a labor organization may waive the right to representation by a lawyer in a labor arbitration.
  3. A party to an agreement to arbitrate or arbitration proceeding may not waive, or the parties may not vary the effect of, the requirements of this section or subsection 1 or 3 of section 32-29.3-03, section 32-29.3-07, 32-29.3-14, or 32-29.3-18, subsection 4 or 5 of section 32-29.3-20, section 32-29.3-22, 32-29.3-23, or 32-29.3-24, subsection 1 or 2 of section 32-29.3-25, or section 32-29.3-29 or 32-29.3-30.

Source:

S.L. 2003, ch. 280, § 4.

32-29.3-05. Application for judicial relief.

  1. Except as otherwise provided in section 32-29.3-28, an application for judicial relief under this chapter must be made by motion to the court and heard in the manner provided by law or rule of court for making and hearing motions.
  2. Unless a civil action involving the agreement to arbitrate is pending, notice of an initial motion to the court under this chapter must be served in the manner provided by law for the service of a summons in a civil action. Otherwise, notice of the motion must be given in the manner provided by law or rule of court of serving motions in pending cases.

Source:

S.L. 2003, ch. 280, § 5.

32-29.3-06. Validity of agreements to arbitrate.

  1. An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.
  2. The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate.
  3. An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable.
  4. If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitration proceeding may continue pending final resolution of the issue by the court, unless the court otherwise orders.

Source:

S.L. 2003, ch. 280, § 6.

Notes to Decisions

Arbitration.

Financial advisor’s motion to compel arbitration was improperly denied because the arbitration provision, which required arbitration of any controversy “arising out of or relating to” any transaction with the brokerage firm’s agents or employees, was a broad provision which applied to the beneficiaries’ claims based primarily on the relationship between the financial advisor and the client and fell within the scope of the arbitration provision because the beneficiaries’ claims asserted a breach of an alleged duty the financial advisor owed to the client. Schwarz v. Gierke, 2010 ND 166, 788 N.W.2d 302, 2010 N.D. LEXIS 168 (N.D. 2010).

32-29.3-07. Motion to compel or stay arbitration.

  1. On motion to a person showing an agreement to arbitrate and alleging another person’s refusal to arbitrate pursuant to the agreement:
    1. If the refusing party does not appear or does not oppose the motion, the court shall order the parties to arbitrate; and
    2. If the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.
  2. On motion of a person alleging that an arbitration proceeding has been initiated or threatened but that there is no agreement to arbitrate, the court shall proceed summarily to decide the issue. If the court finds that there is an enforceable agreement to arbitrate, it shall order the parties to arbitrate.
  3. If the court finds that there is no enforceable agreement, it may not, pursuant to subsection 1 or 2, order the parties to arbitrate.
  4. The court may not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established.
  5. If a proceeding involving a claim referable to arbitration under an alleged agreement to arbitrate is pending in court, a motion under this section must be made in that court. Otherwise a motion under this section may be made in any court as provided in section 32-29.3-27.
  6. If a party makes a motion to the court to order arbitration, the court on just terms shall stay any judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section.
  7. If the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration. If a claim subject to the arbitration is severable, the court may limit the stay to that claim.

Source:

S.L. 2003, ch. 280, § 7.

32-29.3-08. Provisional remedies.

  1. Before an arbitrator is appointed and is authorized and able to act, the court, upon motion of a party to an arbitration proceeding and for good cause shown, may enter an order for provisional remedies to protect the effectiveness of the arbitration proceeding to the same extent and under the same conditions as if the controversy were the subject of a civil action.
  2. After an arbitrator is appointed and is authorized and able to act:
    1. The arbitrator may issue such orders for provisional remedies, including interim awards, as the arbitrator finds necessary to protect the effectiveness of the arbitration proceeding and to promote the fair and expeditious resolution of the controversy, to the same extent and under the same conditions as if the controversy were the subject of a civil action; and
    2. A party to an arbitration proceeding may move the court for a provisional remedy only if the matter is urgent and the arbitrator is not able to act timely or the arbitrator cannot provide an adequate remedy.
  3. A party does not waive a right of arbitration by making a motion under subsection 1 or 2.

Source:

S.L. 2003, ch. 280, § 8.

32-29.3-09. Initiation of arbitration.

  1. A person initiates an arbitration proceeding by giving notice in a record to the other parties to the agreement to arbitrate in the agreed manner between the parties or, in the absence of agreement, by certified or registered mail, return receipt requested and obtained, or by service as authorized for the commencement of a civil action. The notice must describe the nature of the controversy and the remedy sought.
  2. Unless a person objects for lack or insufficiency of notice under subsection 3 of section 32-29.3-15 not later than the beginning of the arbitration hearing, the person by appearing at the hearing waives any objection to lack of or insufficiency of notice.

Source:

S.L. 2003, ch. 280, § 9.

32-29.3-10. Consolidation of separate arbitration proceedings.

  1. Except as otherwise provided in subsection 3, upon motion of a party to an agreement to arbitrate or to an arbitration proceeding, the court may order consolidation of separate arbitration proceedings as to all or some of the claims if:
    1. There are separate agreements to arbitrate or separate arbitration proceedings between the same persons or one of them is a party to a separate agreement to arbitrate or a separate arbitration proceeding with a third person;
    2. The claims subject to the agreements to arbitrate arise in substantial part from the same transaction or series of related transactions;
    3. The existence of a common issue of law or fact creates the possibility of conflicting decisions in the separate arbitration proceedings; and
    4. Prejudice resulting from a failure to consolidate is not outweighed by the risk of undue delay or prejudice to the rights of or hardship to parties opposing consolidation.
  2. The court may order consolidation of separate arbitration proceedings as to some claims and allow other claims to be resolved in separate arbitration proceedings.
  3. The court may not order consolidation of the claims of a party to an agreement to arbitrate if the agreement prohibits consolidation.

Source:

S.L. 2003, ch. 280, § 10.

Collateral References.

Consolidation by State Court of Arbitration Proceedings Brought Under State Law, 31 A.L.R.6th 433.

32-29.3-11. Appointment of arbitrator — Service as a neutral arbitrator.

  1. If the parties to an agreement to arbitrate agree on a method for appointing an arbitrator, that method must be followed, unless the method fails. If the parties have not agreed on a method, the agreed method fails, or an arbitrator appointed fails or is unable to act and a successor has not been appointed, the court, on motion of a party to the arbitration proceeding, shall appoint the arbitrator. An arbitrator so appointed has all the powers of an arbitrator designated in the agreement to arbitrate or appointed pursuant to the agreed method.
  2. An individual who has a known, direct, and material interest in the outcome of the arbitration proceeding or a known, existing, and substantial relationship with a party may not serve as an arbitrator required by an agreement to be neutral.

Source:

S.L. 2003, ch. 280, § 11.

32-29.3-12. Disclosure by arbitrator.

  1. Before accepting appointment, an individual who is requested to serve as an arbitrator, after making a reasonable inquiry, shall disclose to all parties to the agreement to arbitrate and arbitration proceeding and to any other arbitrators any known facts that a reasonable person would consider likely to affect the impartiality of the arbitrator in the arbitration proceeding, including:
    1. A financial or personal interest in the outcome of the arbitration proceeding; and
    2. An existing or past relationship with any of the parties to the agreement to arbitrate or the arbitration proceeding, their counsel or representatives, a witness, or other arbitrators.
  2. An arbitrator has a continuing obligation to disclose to all parties to the agreement to arbitrate and arbitration proceeding and to any other arbitrators any facts that the arbitrator learns after accepting appointment which a reasonable person would consider likely to affect the impartiality of the arbitrator.
  3. If an arbitrator discloses a fact required by subsection 1 or 2 to be disclosed and a party timely objects to the appointment or continued service of the arbitrator based upon the fact disclosed, the objection may be a ground under subdivision b of subsection 1 of section 32-29.3-23 for vacating an award made by the arbitrator.
  4. If the arbitrator did not disclose a fact as required by subsection 1 or 2, upon timely objection by a party, the court under subdivision b of subsection 1 of section 32-29.3-23 may vacate an award.
  5. An arbitrator appointed as a neutral arbitrator who does not disclose a known, direct, and material interest in the outcome of the arbitration proceeding or a known, existing, and substantial relationship with a party is presumed to act with evident partiality under subdivision b of subsection 1 of section 32-29.3-23.
  6. If the parties to an arbitration proceeding agree to the procedures of an arbitration organization or any other procedures for challenges to arbitrators before an award is made, substantial compliance with those procedures is a condition precedent to a motion to vacate an award on that ground under subdivision b of subsection 1 of section 32-29.3-23.

Source:

S.L. 2003, ch. 280, § 12.

32-29.3-13. Action by majority.

If there is more than one arbitrator, the powers of an arbitrator must be exercised by a majority of the arbitrators, but all of them must conduct the hearing under subsection 3 of section 32-29.3-15.

Source:

S.L. 2003, ch. 280, § 13.

32-29.3-14. Immunity of arbitrator — Competency to testify — Attorney’s fees and costs.

  1. An arbitrator or an arbitration organization acting in that capacity is immune from civil liability to the same extent as a judge of a court of this state acting in a judicial capacity.
  2. The immunity afforded by this section supplements any immunity under other law.
  3. The failure of an arbitrator to make a disclosure required by section 32-29.3-12 does not cause any loss of immunity under this section.
  4. In a judicial, administrative, or similar proceeding, an arbitrator or representative of an arbitration organization is not competent to testify and may not be required to produce records as to any statement, conduct, decision, or ruling occurring during the arbitration proceeding, to the same extent as a judge of a court of this state acting in a judicial capacity. This subsection does not apply:
    1. To the extent necessary to determine the claim of an arbitrator, arbitration organization, or representative of the arbitration organization against a party to the arbitration proceeding; or
    2. To a hearing on a motion to vacate an award under subdivision a or b of subsection 1 of section 32-29.3-23 if the movant establishes prima facie that a ground for vacating the award exists.
  5. If a person commences a civil action against an arbitrator, arbitration organization, or representative of an arbitration organization arising from the services of the arbitrator, organization, or representative or if a person seeks to compel an arbitrator or a representative of an arbitration organization to testify or produce records in violation of subsection 4, and the court decides that the arbitrator, arbitration organization, or representative of an arbitration organization is immune from civil liability or that the arbitrator or representative of the organization is not competent to testify, the court shall award to the arbitrator, organization, or representative reasonable attorney’s fees and other reasonable expenses of litigation.

Source:

S.L. 2003, ch. 280, § 14.

32-29.3-15. Arbitration process.

  1. An arbitrator may conduct an arbitration in such manner as the arbitrator considers appropriate for a fair and expeditious disposition of the proceeding. The authority conferred upon the arbitrator includes the power to hold conferences with the parties to the arbitration proceeding before the hearing and among other matters, determine the admissibility, relevance, materiality, and weight of any evidence.
  2. An arbitrator may decide a request for summary disposition of a claim or particular issue:
    1. If all interested parties agree; or
    2. Upon request of one party to the arbitration proceeding if that party gives notice to all other parties to the proceeding, and the other parties have a reasonable opportunity to respond.
  3. If an arbitrator orders a hearing, the arbitrator shall set a time and place and give notice of the hearing not less than five days before the hearing begins. Unless a party to the arbitration proceeding makes an objection to lack or insufficiency of notice not later than the beginning of the hearing, the party’s appearance at the hearing waives the objection. Upon request of a party to the arbitration proceeding and for good cause shown, or upon the arbitrator’s own initiative, the arbitrator may adjourn the hearing from time to time as necessary but may not postpone the hearing to a time later than that fixed by the agreement to arbitrate for making the award unless the parties to the arbitration proceeding consent to a later date. The arbitrator may hear and decide the controversy upon the evidence produced although a party who was duly notified of the arbitration proceeding did not appear. The court, on request, may direct the arbitrator to conduct the hearing promptly and render a timely decision.
  4. At a hearing under subsection 3, a party to the arbitration proceeding has a right to be heard, to present evidence material to the controversy, and to cross-examine witnesses appearing at the hearing.
  5. If an arbitrator ceases or is unable to act during the arbitration proceeding, a replacement arbitrator must be appointed in accordance with section 32-29.3-11 to continue the proceeding and to resolve the controversy.

Source:

S.L. 2003, ch. 280, § 15.

32-29.3-16. Representation by lawyer.

A party to an arbitration proceeding may be represented by a lawyer.

Source:

S.L. 2003, ch. 280, § 16.

32-29.3-17. Witnesses — Subpoenas — Depositions — Discovery.

  1. An arbitrator may issue a subpoena for the attendance of a witness and for the production of records and other evidence at any hearing and may administer oaths. A subpoena must be served in the manner for service of subpoenas in a civil action and, upon motion to the court by a party to the arbitration proceeding or the arbitrator, enforced in the manner for enforcement of subpoenas in a civil action.
  2. In order to make the proceedings fair, expeditious, and cost-effective, upon request of a party to or a witness in an arbitration proceeding, an arbitrator may permit a deposition of any witness to be taken for use as evidence at the hearing, including a witness who cannot be subpoenaed for or is unable to attend a hearing. The arbitrator shall determine the conditions under which the deposition is taken.
  3. An arbitrator may permit such discovery as the arbitrator decides is appropriate in the circumstances, taking into account the needs of the parties to the arbitration proceeding and other affected persons and the desirability of making the proceeding fair, expeditious, and cost-effective.
  4. If an arbitrator permits discovery under subsection 3, the arbitrator may order a party to the arbitration proceeding to comply with the arbitrator’s discovery-related orders, issue subpoenas for the attendance of a witness and for the production of records and other evidence at a discovery proceeding, and take action against a noncomplying party to the extent a court could if the controversy were the subject of a civil action in this state.
  5. An arbitrator may issue a protective order to prevent the disclosure of privileged information, confidential information, trade secrets, and other information protected from disclosure to the extent a court could if the controversy were the subject of a civil action in this state.
  6. All laws compelling a person under subpoena to testify and all fees for attending a judicial proceeding, a deposition, or a discovery proceeding as a witness apply to an arbitration proceeding as if the controversy were the subject of a civil action in this state.
  7. The court may enforce a subpoena or discovery-related order for the attendance of a witness within this state and for the production of records and other evidence issued by an arbitrator in connection with an arbitration proceeding in another state upon conditions determined by the court so as to make the arbitration proceeding fair, expeditious, and cost-effective. A subpoena or discovery-related order issued by an arbitrator in another state must be served in the manner provided by law for service of subpoenas in a civil action in this state and, upon motion to the court by a party to the arbitration proceeding or the arbitrator, enforced in the manner provided by law for enforcement of subpoenas in a civil action in this state.

Source:

S.L. 2003, ch. 280, § 17.

32-29.3-18. Judicial enforcement of preaward ruling by arbitrator.

If an arbitrator makes a preaward ruling in favor of a party to the arbitration proceeding, the party may request the arbitrator to incorporate the ruling into an award under section 32-29.3-19. A prevailing party may make a motion to the court for an expedited order to confirm the award under section 32-29.3-22, in which case the court shall summarily decide the motion. The court shall issue an order to confirm the award unless the court vacates, modifies, or corrects the award under section 32-29.3-23 or 32-29.3-24.

Source:

S.L. 2003, ch. 280, § 18.

32-29.3-19. Award.

  1. An arbitrator shall make a record of an award. The record must be signed or otherwise authenticated by any arbitrator who concurs with the award. The arbitrator or the arbitration organization shall give notice of the award, including a copy of the award, to each party to the arbitration proceeding.
  2. An award must be made within the time specified by the agreement to arbitrate or, if not specified therein, within the time ordered by the court. The court may extend or the parties to the arbitration proceeding may agree in a record to extend the time. The court or the parties may do so within or after the time specified or ordered. A party waives any objection that an award was not timely made unless the party gives notice of the objection to the arbitrator before receiving notice of the award.

Source:

S.L. 2003, ch. 280, § 19.

32-29.3-20. Change of award by arbitrator.

  1. On motion to an arbitrator by a party to an arbitration proceeding, the arbitrator may modify or correct an award:
    1. Upon a ground stated in subdivision a or c of subsection 1 of section 32-29.3-24;
    2. Because the arbitrator has not made a final and definite award upon a claim submitted by the parties to the arbitration proceeding; or
    3. To clarify the award.
  2. A motion under subsection 1 must be made and notice given to all parties within twenty days after the movant receives notice of the award.
  3. A party to the arbitration proceeding must give notice of any objection to the motion within ten days after receipt of the notice.
  4. If a motion to the court is pending under section 32-29.3-22, 32-29.3-23, or 32-29.3-24, the court may submit the claim to the arbitrator to consider whether to modify or correct the award:
    1. Upon a ground stated in subdivision a or c of subsection 1 of section 32-29.3-24;
    2. Because the arbitrator has not made a final and definite award upon a claim submitted by the parties to the arbitration proceeding; or
    3. To clarify the award.
  5. An award modified or corrected pursuant to this section is subject to subsection 1 of section 32-29.3-19 and sections 32-29.3-22, 32-29.3-23, and 32-29.3-24.

Source:

S.L. 2003, ch. 280, § 20.

32-29.3-21. Remedies — Fees and expenses of arbitration proceedings.

  1. An arbitrator may award punitive damages or other exemplary relief if such an award is authorized by law in a civil action involving the same claim and the evidence produced at the hearing justifies the award under the legal standards otherwise applicable to the claim.
  2. An arbitrator may award reasonable attorney’s fees and other reasonable expenses of arbitration if such an award is authorized by law in a civil action involving the same claim or by the agreement of the parties to the arbitration proceeding.
  3. As to all remedies other than those authorized by subsections 1 and 2, an arbitrator may order such remedies as the arbitrator considers just and appropriate under the circumstances of the arbitration proceeding. The fact that such a remedy could not or would not be granted by the court is not a ground for refusing to confirm an award under section 32-29.3-22 or for vacating an award under section 32-29.3-23.
  4. An arbitrator’s expenses and fees, together with other expenses, must be paid as provided in the award.
  5. If an arbitrator awards punitive damages or other exemplary relief under subsection 1, the arbitrator shall specify in the award the basis in fact justifying and the basis in law authorizing the award and state separately the amount of the punitive damages or other exemplary relief.

Source:

S.L. 2003, ch. 280, § 21.

32-29.3-22. Confirmation of award.

After a party to an arbitration proceeding receives notice of an award, the party may make a motion to the court for an order confirming the award at which time the court shall issue a confirming order unless the award is modified or corrected pursuant to section 32-29.3-20 or 32-29.3-24 or is vacated pursuant to section 32-29.3-23.

Source:

S.L. 2003, ch. 280, § 22.

Notes to Decisions

Challenging Arbitration Awards.

Where the soybean seller failed to file a motion to vacate the arbitration award in favor of the soybean purchaser within 90 days of that award being entered, the soybean seller under N.D.C.C. § 32-29.3-23(1)(a)-(f) waived any grounds for challenging the award. Pursuant to N.D.C.C. § 32-29.3-23(2), the soybean seller was required to file a motion to vacate that award within 90 days, and that was true even where the soybean purchaser moved 70 days after the award to confirm it, as nothing in N.D.C.C. § 32-29.3-22 regarding the confirmation of awards indicated that the filing of a motion to confirm tolled the 90-day time limit for filing a motion to vacate. James Valley Grain, LLC v. David, 2011 ND 160, 802 N.W.2d 158, 2011 N.D. LEXIS 158 (N.D. 2011).

32-29.3-23. Vacating award.

  1. Upon motion to the court by a party to an arbitration proceeding, the court shall vacate an award made in the arbitration proceeding if:
    1. The award was procured by corruption, fraud, or other undue means;
    2. There was:
      1. Evident partiality by an arbitrator appointed as a neutral arbitrator;
      2. Corruption by an arbitrator; or
      3. Misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding;
    3. An arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to consider evidence material to the controversy, or otherwise conducted the hearing contrary to section 32-29.3-15, so as to prejudice substantially the rights of a party to the arbitration proceeding;
    4. An arbitrator exceeded the arbitrator’s powers;
    5. There was no agreement to arbitrate, unless the person participated in the arbitration proceeding without raising the objection under subsection 3 of section 32-29.3-15 not later than the beginning of the arbitration hearing; or
    6. The arbitration was conducted without proper notice of the initiation of an arbitration as required in section 32-29.3-09 so as to prejudice substantially the rights of a party to the arbitration proceeding.
  2. A motion under this section must be filed within ninety days after the movant receives notice of the award pursuant to section 32-29.3-19 or within ninety days after the movant receives notice of a modified or corrected award pursuant to section 32-29.3-20, unless the movant alleges that the award was procured by corruption, fraud, or other undue means, in which case the motion must be made within ninety days after the ground is known or by the exercise of reasonable care would have been known by the movant.
  3. If the court vacates an award on a ground other than that set forth in subdivision e of subsection 1, it may order a rehearing. If the award is vacated on a ground stated in subdivision a or b of subsection 1, the rehearing must be before a new arbitrator. If the award is vacated on a ground stated in subdivision c, d, or f of subsection 1, the rehearing may be before the arbitrator who made the award or the arbitrator’s successor. The arbitrator must render the decision in the rehearing within the same time as that provided in subsection 2 of section 32-29.3-19 for an award.
  4. If the court denies a motion to vacate an award, the court shall confirm the award unless a motion to modify or correct the award is pending.

Source:

S.L. 2003, ch. 280, § 23.

Notes to Decisions

Award Confirmed.

District court did not err in confirming an arbitration award because it was required to confirm the award after it denied a customer's motion to vacate, and a motion to modify or correct the award was not pending; the Federal Arbitration Act did preclude confirmation of the award under state statutory law. Thompson v. Lithia ND Acquisition Corp. #1, 2017 ND 136, 896 N.W.2d 230, 2017 N.D. LEXIS 137 (N.D. 2017).

Award Not Vacated.

Arbitrator did not act in a completely irrational manner in awarding arbitration in favor of an engineering company and against a contractor and the arbitration award was not so mistaken that it resulted in real injustice or constructive fraud nor did the arbitrator’s decision evidence a manifest disregard for the law. The arbitrator stated the correct law and applied it as he understood it and there was nothing in the record that evidenced the arbitrator knew the law and intentionally disregarded the law; even if the arbitrator had been mistaken as to the application of the law of collateral estoppel, it would not meet either standard to require vacation of the award. Gratech Co. v. Wold Eng'g, P.C., 2007 ND 46, 729 N.W.2d 326, 2007 N.D. LEXIS 46 (N.D. 2007).

Where the soybean seller failed to file a motion to vacate the arbitration award in favor of the soybean purchaser within 90 days of that award being entered, the soybean seller under N.D.C.C. § 32-29.3-23(1)(a)-(f) waived any grounds for challenging the award. Pursuant to N.D.C.C. § 32-29.3-23(2), the soybean seller was required to file a motion to vacate that award within 90 days, and that was true even where the soybean purchaser moved 70 days after the award to confirm it, as nothing in N.D.C.C. § 32-29.3-22 regarding the confirmation of awards indicated that the filing of a motion to confirm tolled the 90-day time limit for filing a motion to vacate. James Valley Grain, LLC v. David, 2011 ND 160, 802 N.W.2d 158, 2011 N.D. LEXIS 158 (N.D. 2011).

District court did not err by failing to vacate an arbitrator's award on the ground the arbitrator was not appointed in accordance with the agreed-upon procedures because the customer's failure to object to the process used to select the arbitrator, either when the arbitrator was selected or during the arbitration proceedings, constituted a waiver; the American Arbitration Association Consumer Arbitration Rules required the customer to object in writing before proceeding with the arbitration. Thompson v. Lithia ND Acquisition Corp. #1, 2017 ND 136, 896 N.W.2d 230, 2017 N.D. LEXIS 137 (N.D. 2017).

Claim Preempted.

Employees’ claim under North Dakota’s Uniform Arbitration Act, N.D.C.C. § 32-29.3-01 et. seq., to vacate an arbitration award, was dismissed for failure to state a cause of action because the claim was preempted by § 301(a) of the Labor Management Relations Act, 29 USCS § 185(a), as it was clear from the pleadings that the employees’ claims were inextricably intertwined with the collective bargaining agreement and/or substantially dependent upon an analysis of the terms or provisions of the collective bargaining agreement. Mayer v. Qwest Dex, Inc., 2004 U.S. Dist. LEXIS 4646 (D.N.D. Mar. 16, 2004).

Collateral References.

Adoption of manifest disregard of law standard as nonstatutory ground to review arbitration awards governed by Uniform Arbitration Act (UAA), 14 A.L.R.6th 491.

32-29.3-24. Modification or correction of award.

  1. Upon motion made within ninety days after the movant receives notice of the award pursuant to section 32-29.3-19 or within ninety days after the movant receives notice of a modified or corrected award pursuant to section 32-29.3-20, the court shall modify or correct the award if:
    1. There was an evident mathematical miscalculation or an evident mistake in the description of a person, thing, or property referred to in the award;
    2. The arbitrator has made an award on a claim not submitted to the arbitrator and the award may be corrected without affecting the merits of the decision upon the claims submitted; or
    3. The award is imperfect in a matter of form not affecting the merits of the decision on the claim submitted.
  2. If a motion made under subsection 1 is granted, the court shall modify or correct and confirm the award as modified or corrected. Otherwise, unless a motion to vacate is pending, the court shall confirm the award.
  3. A motion to modify or correct an award pursuant to this section may be joined with a motion to vacate the award.

Source:

S.L. 2003, ch. 280, § 24.

32-29.3-25. Judgment on award — Attorney’s fees and litigation expenses.

  1. Upon granting an order confirming, vacating without directing a rehearing, modifying, or correcting an award, the court shall enter a judgment in conformity therewith. The judgment may be recorded, docketed, and enforced as any other judgment in a civil action.
  2. A court may allow reasonable costs of the motion and subsequent judicial proceedings.
  3. On application of a prevailing party to a contested judicial proceeding under section 32-29.3-22, 32-29.3-23, or 32-29.3-24, the court may add reasonable attorney’s fees and other reasonable expenses of litigation incurred in a judicial proceeding after the award is made to a judgment confirming, vacating without directing a rehearing, modifying, or correcting an award.

Source:

S.L. 2003, ch. 280, § 25.

Notes to Decisions

Rationale for Denial Necessary.

District court made no findings of fact to support its denial of attorney’s fees to the company; without an explanation, the North Dakota Supreme Court was unable to determine whether the district court abused its discretion in denying the company attorney’s fees because it did not provide a rationale for its decision; therefore, the district court’s order denying the company attorney’s fees was remanded so the court could redetermine attorney’s fees based on an expressed rationale. Gratech Co. v. Wold Eng'g, P.C., 2007 ND 46, 729 N.W.2d 326, 2007 N.D. LEXIS 46 (N.D. 2007).

32-29.3-26. Jurisdiction.

  1. A court of this state having jurisdiction over the controversy and the parties may enforce an agreement to arbitrate.
  2. An agreement to arbitrate providing for arbitration in this state confers exclusive jurisdiction on the court to enter judgment on an award under this chapter.

Source:

S.L. 2003, ch. 280, § 26.

32-29.3-27. Venue.

A motion pursuant to section 32-29.3-05 must be made in the court of the county in which the agreement to arbitrate specifies the arbitration hearing is to be held or, if the hearing has been held, in the court of the county in which it was held. Otherwise, the motion may be made in the court of any county in which an adverse party resides or has a place of business or, if no adverse party has a residence or place of business in this state, in the court of any county in this state. All subsequent motions must be made in the court hearing the initial motion unless the court otherwise directs.

Source:

S.L. 2003, ch. 280, § 27.

32-29.3-28. Appeals.

  1. An appeal may be taken from:
    1. An order denying a motion to compel arbitration;
    2. An order granting a motion to stay arbitration;
    3. An order confirming or denying confirmation of an award;
    4. An order modifying or correcting an award;
    5. An order vacating an award without directing a rehearing; or
    6. A final judgment entered pursuant to this chapter.
  2. An appeal under this section must be taken as from an order or a judgment in a civil action.
  3. Agreements to arbitrate between and among insurers and self-insured entities which explicitly renounce a right of appeal are fully enforceable in this state. This chapter does not alter those agreements to create a right of appeal.

Source:

S.L. 2003, ch. 280, § 28.

32-29.3-29. Relationship to Electronic Signatures in Global and National Commerce Act.

The provisions of sections 32-29.3-01 and 32-29.3-19 which relate to the legal effect, validity, and enforceability of electronic records or electronic signatures, and of contracts performed with the use of such records or signatures must be construed to conform to the requirements of section 102 of the Electronic Signatures in Global and National Commerce Act [Pub. L. 106-229; 15 U.S.C. 7001, 7002].

Source:

S.L. 2003, ch. 280, § 29.

Chapter 32-29.4 Uniform Family Law Arbitration Act

Source:

S.L. 2019, SB2063, § 1, eff August 1, 2019.

32-29.4-01. Definitions.

In this chapter:

  1. “Arbitration agreement” means an agreement that subjects a family law dispute to arbitration.
  2. “Arbitration organization” means an association, agency, board, commission, or other entity that is neutral and initiates, sponsors, or administers an arbitration or is involved in the selection of an arbitrator.
  3. “Arbitrator” means an individual selected, alone or with others, to make an award in a family law dispute that is subject to an arbitration agreement.
  4. “Child-related dispute” means a family law dispute regarding parenting time, or financial support regarding a child.
  5. “Court” means the district court.
  6. “Family law dispute” means a contested issue arising under the domestic relations law of this state.
  7. “Party” means an individual who signs an arbitration agreement and whose rights will be determined by an award.
  8. “Person” means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal entity.
  9. “Record”, used as a noun, means information inscribed on a tangible medium or stored in an electronic or other medium and is retrievable in perceivable form.
  10. “Sign” means, with present intent to authenticate or adopt a record:
    1. To execute or adopt a tangible symbol; or
    2. To attach to or logically associate with the record an electronic symbol, sound, or process.
  11. “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes a federally recognized Indian tribe.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-02. Scope.

  1. This chapter governs arbitration of a family law dispute.
  2. This chapter does not authorize an arbitrator to make an award that:
    1. Grants a legal separation, divorce, or annulment;
    2. Terminates parental rights;
    3. Grants an adoption or a guardianship of a child or incapacitated individual;
    4. Determines the status of dependency; or
    5. Determines a child-related dispute.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-03. Applicable law.

  1. Except as otherwise provided in this chapter, the law applicable to arbitration is chapter 32-29.3.
  2. In determining the merits of a family law dispute, an arbitrator shall apply the law of this state, including its choice of law rules.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-04. Arbitration agreement.

  1. An arbitration agreement must:
    1. Be in a record signed by the parties;
    2. Identify the arbitrator, an arbitration organization, or a method of selecting an arbitrator; and
    3. Identify the family law dispute the parties intend to arbitrate.
  2. An agreement in a record to arbitrate a family law dispute that arises between the parties before, at the time, or after the agreement is made is valid and enforceable as any other contract and irrevocable except on a ground that exists at law or in equity for the revocation of a contract.
  3. If a party objects to arbitration on the ground the arbitration agreement is unenforceable or the agreement does not include a family law dispute, the court shall decide whether the agreement is enforceable or includes the family law dispute.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-05. Notice of arbitration.

A party may initiate arbitration by giving notice to arbitrate to the other party in the manner specified in the arbitration agreement or, in the absence of a specified manner, under the law and procedural rules of this state other than this chapter governing contractual arbitration.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-06. Motion for judicial relief.

  1. A motion for judicial relief under this chapter must be made to the court in which a proceeding is pending involving a family law dispute subject to arbitration or, if no proceeding is pending, a court with jurisdiction over the parties and the subject matter.
  2. On motion of a party, the court may compel arbitration if the parties have entered an arbitration agreement that complies with section 32-29.4-04 unless the court determines under section 32-29.4-11 the arbitration should not proceed.
  3. On motion of a party, the court shall terminate arbitration if it determines:
    1. The agreement to arbitrate is unenforceable;
    2. The family law dispute is not subject to arbitration; or
    3. Under section 32-29.4-11, the arbitration should not proceed.
  4. Unless prohibited by an arbitration agreement, on motion of a party, the court may order consolidation of separate arbitrations involving the same parties and a common issue of law or fact if necessary for the fair and expeditious resolution of the family law dispute.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-07. Qualification and selection of arbitrator.

  1. Except as otherwise provided in subsection 2, unless waived in a record by the parties, an arbitrator must be:
    1. An attorney in good standing admitted to practice or on inactive status or a judge on retired status in a state; and
    2. Trained in identifying domestic violence and child abuse.
  2. The identification in the arbitration agreement of an arbitrator, arbitration organization, or method of selection of the arbitrator controls.
  3. If an arbitrator is unable or unwilling to act or if the agreed-on method of selecting an arbitrator fails, on motion of a party, the court shall select an arbitrator.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-08. Disclosure by arbitrator — Disqualification.

  1. Before agreeing to serve as an arbitrator, an individual, after making reasonable inquiry, shall disclose to all parties any known fact a reasonable person would believe is likely to affect:
    1. The impartiality of the arbitrator in the arbitration, including bias, a financial or personal interest in the outcome of the arbitration, or an existing or past relationship with a party, attorney representing a party, or witness; or
    2. The arbitrator’s ability to make a timely award.
  2. An arbitrator, the parties, and the attorneys representing the parties have a continuing obligation to disclose to all parties any known fact a reasonable person would believe is likely to affect the impartiality of the arbitrator or the arbitrator’s ability to make a timely award.
  3. An objection to the selection or continued service of an arbitrator and a motion for a stay of arbitration and disqualification of the arbitrator must be made under the law and procedural rules of this state other than this chapter governing arbitrator disqualification.
  4. If a disclosure required by subdivision a of subsection 1 or subsection 2 is not made, the court may:
    1. On motion of a party not later than thirty days after the failure to disclose is known or by the exercise of reasonable care should have been known to the party, suspend the arbitration;
    2. On timely motion of a party, vacate an award under subdivision b of subsection 1 of section 32-29.4-18; or
    3. If an award has been confirmed, grant other appropriate relief under law of this state other than this chapter.
  5. If the parties agree to discharge an arbitrator or the arbitrator is disqualified, the parties by agreement may select a new arbitrator or request the court to select another arbitrator as provided in section 32-29.4-07.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-09. Party participation.

  1. A party may:
    1. Be represented in an arbitration by an attorney;
    2. Be accompanied by an individual who will not be called as a witness or act as an advocate; and
    3. Participate in the arbitration to the full extent permitted under the law and procedural rules of this state other than this chapter governing a party’s participation in contractual arbitration.
  2. A party or representative of a party may not communicate ex parte with the arbitrator except to the extent allowed in a family law proceeding for communication with a judge.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-10. Temporary order or award.

  1. Before an arbitrator is selected and able to act, on motion of a party, the court may enter a temporary order in accordance with rule 8.2 of the North Dakota Rules of Court.
  2. After an arbitrator is selected:
    1. The arbitrator may make a temporary award in accordance with rule 8.2 of the North Dakota Rules of Court; and
    2. If the matter is urgent and the arbitrator is not able to act in a timely manner or provide an adequate remedy, on motion of a party, the court may enter a temporary order.
  3. On motion of a party, before the court confirms a final award, the court under section 32-29.4-15, 32-29.4-17, or 32-29.4-18 may confirm, correct, vacate, or amend a temporary award made under subdivision a of subsection 2.
  4. On motion of a party, the court may enforce a subpoena or interim award issued by an arbitrator for the fair and expeditious disposition of the arbitration.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-11. Protection of party or child.

  1. In this section, “protection order” means an injunction or other order, issued under the domestic violence, family violence, or stalking laws of the issuing jurisdiction, to prevent an individual from engaging in a violent or threatening act against, harassment of, contact or communication with, or being in physical proximity to another individual who is a party or a child under the custodial responsibility of a party.
  2. If a party is subject to a protection order or an arbitrator determines there is a reasonable basis to believe a party’s safety or ability to participate effectively in arbitration is at risk, the arbitrator shall stay the arbitration and refer the parties to court. The arbitration may not proceed unless the party at risk affirms the arbitration agreement in a record and the court determines:
    1. The affirmation is informed and voluntary;
    2. Arbitration is not inconsistent with the protection order; and
    3. Reasonable procedures are in place to protect the party from risk of harm, harassment, or intimidation.
  3. An arbitrator may make a temporary award to protect a party or child from harm, harassment, or intimidation.
  4. On motion of a party, the court may stay arbitration and review a determination or temporary award under this section.
  5. This section supplements remedies available under law of this state other than this chapter for the protection of victims of domestic violence, family violence, stalking, harassment, or similar abuse.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-12. Powers and duties of arbitrator.

  1. An arbitrator shall conduct an arbitration in a manner the arbitrator considers appropriate for a fair and expeditious disposition of the dispute.
  2. An arbitrator shall provide each party a right to be heard, to present evidence material to the family law dispute, and to cross-examine witnesses.
  3. Unless the parties otherwise agree in a record, an arbitrator’s powers include the power to:
    1. Select the rules for conducting the arbitration;
    2. Hold conferences with the parties before a hearing;
    3. Determine the date, time, and place of a hearing;
    4. Require a party to provide:
      1. A copy of a relevant court order;
      2. Information required to be disclosed in a family law proceeding under law of this state other than this chapter; and
      3. A proposed award that addresses each issue in arbitration;
    5. Appoint a private expert at the expense of the parties;
    6. Administer an oath or affirmation and issue a subpoena for the attendance of a witness or the production of documents and other evidence at a hearing;
    7. Compel discovery concerning the family law dispute and determine the date, time, and place of discovery;
    8. Determine the admissibility and weight of evidence;
    9. Permit deposition of a witness for use as evidence at a hearing;
    10. For good cause, prohibit a party from disclosing information;
    11. Impose a procedure to protect a party or child from risk of harm, harassment, or intimidation;
    12. Allocate arbitration fees, attorney’s fees, expert-witness fees, and other costs to the parties; and
    13. Impose a sanction on a party for bad faith or misconduct during the arbitration according to standards governing imposition of a sanction for litigant misconduct in a family law proceeding.
  4. An arbitrator may not allow ex parte communication except to the extent allowed in a family law proceeding for communication with a judge.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-13. Recording of hearing.

Except as otherwise required by law of this state other than this chapter, an arbitration hearing need not be recorded unless required by the arbitrator, provided by the arbitration agreement, or requested by a party.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-14. Award.

  1. An arbitrator shall make an award in a record, dated and signed by the arbitrator. The arbitrator shall give notice of the award to each party by a method agreed on by the parties or, if the parties have not agreed on a method, under the law and procedural rules of this state other than this chapter governing notice in contractual arbitration.
  2. The award under this chapter must state the reasons on which it is based unless otherwise agreed by the parties.
  3. An award under this chapter is not enforceable as a judgment until confirmed under section 32-29.4-15.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-15. Confirmation of award.

  1. After an arbitrator gives notice under subsection 1 of section 32-29.4-14 of an award, including an award corrected under section 32-29.4-16, a party may move the court for an order confirming the award.
  2. The court shall confirm an award under this chapter if:
    1. The parties agree in a record to confirmation; or
    2. The time has expired for making a motion, and no motion is pending, under section 32-29.4-17 or 32-29.4-18.
  3. On confirmation, an award under this chapter is enforceable as a judgment.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-16. Correction by arbitrator of unconfirmed award.

On motion of a party made not later than thirty days after an arbitrator gives notice under subsection 1 of section 32-29.4-14 of an award, the arbitrator may correct the award:

  1. If the award has an evident mathematical miscalculation or an evident mistake in the description of a person, thing, or property;
  2. If the award is imperfect in a matter of form not affecting the merits on the issues submitted; or
  3. To clarify the award.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-17. Correction by court of unconfirmed award.

  1. On motion of a party made not later than ninety days after an arbitrator gives notice under subsection 1 of section 32-29.4-14 of an award, including an award corrected under section 32-29.4-16, the court shall correct the award if:
    1. The award has an evident mathematical miscalculation or an evident mistake in the description of a person, thing, or property;
    2. The award is imperfect in a matter of form not affecting the merits of the issues submitted; or
    3. The arbitrator made an award on a dispute not submitted to the arbitrator and the award may be corrected without affecting the merits of the issues submitted.
  2. A motion under this section to correct an award may be joined with a motion to vacate or amend the award under section 32-29.4-18.
  3. Unless a motion under section 32-29.4-18 is pending, the court may confirm a corrected award under section 32-29.4-15.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-18. Vacation or amendment by court of unconfirmed award.

  1. On motion of a party, the court shall vacate an unconfirmed award if the moving party establishes that:
    1. The award was procured by corruption, fraud, or other undue means;
    2. There was:
      1. Evident partiality by the arbitrator;
      2. Corruption by the arbitrator; or
      3. Misconduct by the arbitrator substantially prejudicing the rights of a party;
    3. The arbitrator refused to postpone a hearing on showing of sufficient cause for postponement, refused to consider evidence material to the controversy, or otherwise conducted the hearing contrary to section 32-29.4-12, so as to prejudice substantially the rights of a party;
    4. The arbitrator exceeded the arbitrator’s powers;
    5. No arbitration agreement exists, unless the moving party participated in the arbitration without making a motion under section 32-29.4-06 not later than the beginning of the first arbitration hearing; or
    6. The arbitration was conducted without proper notice under section 32-29.4-05 of the initiation of arbitration, so as to prejudice substantially the rights of a party.
  2. A motion under this section to vacate or amend an award must be filed not later than ninety days:
    1. After an arbitrator gives the party filing the motion notice of the award or a corrected award; or
    2. For a motion under subdivision a of subsection 1, after the ground of corruption, fraud, or other undue means is known or by the exercise of reasonable care should have been known to the party filing the motion.
  3. If the court under this section vacates an award for a reason other than the absence of an enforceable arbitration agreement, the court may order a rehearing before an arbitrator. If the reason for vacating the award is the award was procured by corruption, fraud, or other undue means or there was evident partiality, corruption, or misconduct by the arbitrator, the rehearing must be before another arbitrator.
  4. If the court under this section denies a motion to vacate or amend an award, the court may confirm the award under section 32-29.4-15 unless a motion is pending under section 32-29.4-17.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-19. Clarification of confirmed award.

If the meaning or effect of an award confirmed under section 32-29.4-15 is in dispute, the parties may:

  1. Agree to arbitrate the dispute before the original arbitrator or another arbitrator; or
  2. Proceed in court under law of this state other than this chapter governing clarification of a judgment in a family law proceeding.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-20. Judgment on award.

  1. On granting an order confirming, vacating without directing a rehearing, or amending an award under this chapter, the court shall enter judgment in conformity with the order.
  2. On motion of a party, the court may order a document or part of the arbitration record be sealed or redacted to prevent public disclosure of all or part of the record or award to the extent permitted under law of this state other than this chapter.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-21. Modification of confirmed award or judgment.

If a party requests under law of this state other than this chapter a modification of an award confirmed under section 32-29.4-15 or judgment on the award based on a fact occurring after confirmation:

  1. The parties shall proceed under the dispute-resolution method specified in the award or judgment; or
  2. If the award or judgment does not specify a dispute-resolution method, the parties may:
    1. Agree to arbitrate the modification before the original arbitrator or another arbitrator; or
    2. Absent agreement proceed under law of this state other than this chapter governing modification of a judgment in a family law proceeding.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-22. Enforcement of confirmed award.

  1. The court shall enforce an award confirmed under section 32-29.4-15, including a temporary award, in the manner and to the same extent as any other order or judgment of a court.
  2. The court shall enforce an arbitration award in a family law dispute confirmed by a court in another state in the manner and to the same extent as any other order or judgment from another state.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-23. Appeal.

  1. An appeal may be taken under this chapter from:
    1. An order granting or denying a motion to compel arbitration;
    2. An order granting or denying a motion to stay arbitration;
    3. An order confirming or denying confirmation of an award;
    4. An order correcting an award;
    5. An order vacating an award without directing a rehearing; or
    6. A final judgment.
  2. An appeal under this section may be taken as from an order or a judgment in a civil action.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-24. Immunity of arbitrator.

  1. An arbitrator or arbitration organization acting in that capacity in a family law dispute is immune from civil liability to the same extent as a judge of a court of this state acting in a judicial capacity.
  2. The immunity provided by this section supplements any immunity under law of this state other than this chapter.
  3. An arbitrator’s failure to make a disclosure required by section 32-29.4-08 does not cause the arbitrator to lose immunity under this section.
  4. An arbitrator is not competent to testify, and may not be required to produce records, in a judicial, administrative, or similar proceeding about a statement, conduct, decision, or ruling occurring during an arbitration, to the same extent as a judge of a court of this state acting in a judicial capacity. This section does not apply:
    1. To the extent disclosure is necessary to determine a claim by the arbitrator or arbitration organization against a party to the arbitration; or
    2. To a hearing on a motion under subdivision a or b of subsection 1 of section 32-29.4-18 to vacate an award, if there is prima facie evidence a ground for vacating the award exists.
  5. If a person commences a civil action against an arbitrator arising from the services of the arbitrator or seeks to compel the arbitrator to testify or produce records in violation of subsection 4 and the court determines the arbitrator is immune from civil liability or is not competent to testify or required to produce the records, the court shall award the arbitrator reasonable attorney’s fees, costs, and reasonable expenses of litigation.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-25. Relation to Electronic Signatures in Global and National Commerce Act.

This chapter modifies, limits, or supersedes the federal Electronic Signatures in Global and National Commerce Act [Pub. L. 106-229; 114 Stat. 464; 15 U.S.C. 7001 et seq.], but does not modify, limit, or supersede section 101(c) of that Act [15 U.S.C. 7001(c)], or authorize electronic delivery of any of the notices described in section 103(b) of that Act [15 U.S.C. 7003(b)].

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

32-29.4-26. Transitional provision.

This chapter applies to arbitration of a family law dispute under an arbitration agreement made after July 31, 2019. If an arbitration agreement was made before August 1, 2019, the parties may agree in a record this chapter applies to the arbitration.

Source:

S.L. 2019, ch. 280, § 1, eff August 1, 2019.

CHAPTER 32-30 Proceedings Against Joint Debtors

32-30-01. Joint and several debtors — Procedure when summons not served on all.

When the action is against two or more defendants, the plaintiff may proceed as follows:

  1. If the action is against defendants jointly indebted upon contract and the summons is served on one or more, the plaintiff may proceed against the defendant served, unless the court otherwise directs, and if the plaintiff recovers judgment it may be entered against all the defendants thus jointly indebted to the extent only that it may be enforced against the joint property of all and the separate property of the defendants served, and, if they are subject to arrest, against the persons of the defendants served.
  2. If the action is against defendants severally liable and one or more shall be served, the plaintiff may proceed against the defendants served in the same manner as if they were the only defendants.
  3. If all the defendants have been served, judgment may be taken against any of them severally, when the plaintiff would be entitled to judgment against any one or more of such defendants if the action had been against such defendants or any of them alone.
  4. If the name of one or more partners for any cause shall have been omitted in any action in which judgment shall have been entered against the defendants named in the summons, and such omission shall not have been pleaded in such action, the plaintiff, in case the judgment therein shall remain unsatisfied, may recover by action of such partner separately upon proving such partner’s joint liability, notwithstanding that partner may not have been named in the original action, but the plaintiff shall have satisfaction of only one judgment rendered for the same claim for relief.

Source:

C. Civ. P. 1877, § 105; R.C. 1895, § 5261; R.C. 1899, § 5261; R.C. 1905, § 6847; C.L. 1913, § 7435; R.C. 1943, § 32-3001.

Derivation:

Wait’s (N.Y.) Code, 136; Harston’s (Cal.) Practice, 414.

Notes to Decisions

Amendment of Summons.

Service of a summons on a partner as the managing agent of a supposed corporation confers jurisdiction to permit the amendment of the summons and complaint so as to show an action against the partnership. Goldstein v. Peter Fox Sons Co., 22 N.D. 636, 135 N.W. 180, 1912 N.D. LEXIS 53 (N.D. 1912).

“Joint Debtor” Defined.

The term “joint debtor” as used in this section means and includes all persons having a joint liability, and is not limited to partners. Freeman v. Smith, 83 N.W.2d 834, 1957 N.D. LEXIS 128 (N.D. 1957).

Joint Liability.

Under North Dakota law, when all the parties jointly liable on an obligation are sued together, there is no real distinction between “joint” and “joint and several” liability. First Interstate Bank, N.A. v. Larson, 475 N.W.2d 538, 1991 N.D. LEXIS 166 (N.D. 1991).

“Joint Property” Defined.

The term “joint property” as used in this section includes property owned and shared in undivided interests by joint debtors as tenants in common where the property is devoted to the furtherance of the adventure out of which the joint liability arose. Freeman v. Smith, 83 N.W.2d 834, 1957 N.D. LEXIS 128 (N.D. 1957).

Judgment.

A judgment severally may be taken against joint debtors. Orth v. Procise, 42 N.D. 149, 171 N.W. 861, 1919 N.D. LEXIS 113 (N.D. 1919).

Jurisdiction.

In an action against several nonresident joint debtors to recover upon a joint contractual liability, the district court acquires provisional jurisdiction in personam over the joint debtor defendants by virtue of substituted service of the summons upon only one of the joint debtors. Freeman v. Smith, 83 N.W.2d 834, 1957 N.D. LEXIS 128 (N.D. 1957).

Where the district court acquires provisional jurisdiction in personam over nonresident joint debtor defendants by virtue of substituted service of the summons upon only one of the joint debtors in an action to recover upon a joint contractual liability, an attachment of their joint property serves to secure plaintiff’s claim and brings the property within the control of the court so that a default judgment in rem may be entered and enforced by execution sale of the joint property to the extent necessary to satisfy the joint liability in personam. Freeman v. Smith, 83 N.W.2d 834, 1957 N.D. LEXIS 128 (N.D. 1957).

Partners’ Guaranties of Partnership’s Mortgage Debt.

When general partners personally guaranty a general partnership mortgage debt, the anti-deficiency statutes are applicable, and the procedures for deficiency judgments outlined in First State Bank v. Ihringer, 217 N.W.2d 857 (1974) must be satisfied; however, because of contractual expectations, this decision would be applied prospectively. First Interstate Bank v. Larson, 475 N.W.2d 538 (N.D. 1991), decided prior to the amendment to N.D.C.C. §§ 22-01-12 and 45-06-07, by Session Laws 1993, Ch. 246.

Partnership Liability.

A judgment for plaintiff against a partnership, where only one copartner is served and defends the action, should be entered against the firm, and not against the defendant served. Continental Supply Co. v. Syndicate Trust Co., 52 N.D. 209, 202 N.W. 404, 1924 N.D. LEXIS 127 (N.D. 1924).

An action brought pursuant to subsection 4 of this section is one upon the prior judgment and such judgment, if valid, is conclusive upon the question of partnership liability in such action. International Shoe Co. v. Hawkinson, 73 N.D. 677, 18 N.W.2d 761, 1945 N.D. LEXIS 84 (N.D. 1945).

Where for any cause the name of one or more partners has been omitted in any action in which judgment has been entered against the defendants named in the summons, and such omission was not pleaded in such action, the plaintiff, in case the judgment therein shall remain unsatisfied, may recover of such partner separately upon proving his joint liability. International Shoe Co. v. Hawkinson, 73 N.D. 677, 18 N.W.2d 761, 1945 N.D. LEXIS 84 (N.D. 1945).

Where two partners have been sued jointly upon a partnership liability, and at the trial of the action the case has been erroneously dismissed, as to one but prosecuted to judgment against the other, and upon appeal a new trial has been ordered with respect to the defendant in whose favor nonsuit was granted, such new trial is governed by the provisions of subsection 4 of this section. International Shoe Co. v. Hawkinson, 73 N.D. 677, 18 N.W.2d 761, 1945 N.D. LEXIS 84 (N.D. 1945).

Setoff.

A surety, jointly bound with his principal independently of statute, may offset against such joint indebtedness his individual claim against the creditor in such joint indebtedness, where both the creditor and principal are insolvent. Clark v. Sullivan, 2 N.D. 103, 49 N.W. 416, 1891 N.D. LEXIS 28 (N.D. 1891).

Collateral References.

Tort action for personal injury or property damage by partner against another partner or the partnership, 39 A.L.R.4th 139.

32-30-02. Summons after judgment.

When a judgment shall be recovered against one or more of several persons jointly indebted upon a contract by proceeding as provided in section 32-30-01, those who were not originally summoned to answer the complaint and did not appear in the action may be summoned to show cause why they should not be bound by the judgment in the same manner as if they had been summoned originally.

Source:

C. Civ. P. 1877, § 426; R.C. 1895, § 5633; R.C. 1899, § 5633; R.C. 1905, § 7232; C.L. 1913, § 7850; R.C. 1943, § 32-3002.

Derivation:

Wait’s (N.Y.) Code, 375; Harston’s (Cal.) Practice, 989.

32-30-03. Requisites of summons.

The summons provided in section 32-30-02 must be subscribed by the judgment creditor or the creditor’s attorney, must describe the judgment and require the person summoned to show cause within twenty days after the service of the summons, and must be served in like manner as the original summons. It is not necessary to file a new complaint.

Source:

C. Civ. P. 1877, § 427; R.C. 1895, § 5634; R.C. 1899, § 5634; R.C. 1905, § 7233; C.L. 1913, § 7851; R.C. 1943, § 32-3003.

Derivation:

Wait’s (N.Y.) Code, 377; Harston’s (Cal.) Practice, 990.

32-30-04. Accompanied by affidavit.

The summons must be accompanied by an affidavit of the person subscribing it, that the judgment has not been satisfied to that person’s knowledge or information and belief and must specify the amount due thereon.

Source:

C. Civ. P. 1877, § 428; R.C. 1895, § 5635; R.C. 1899, § 5635; R.C. 1905, § 7234; C.L. 1913, § 7852; R.C. 1943, § 32-3004.

Derivation:

Wait’s (N.Y.) Code, 378; Harston’s (Cal.) Practice, 991.

32-30-05. Answer.

Upon such summons the party summoned may answer within the time specified therein, denying the judgment or setting up any defense which may have arisen subsequently, and that party may make the same defense which the party originally might have made to the action, except the statute of limitations.

Source:

C. Civ. P. 1877, § 429; R.C. 1895, § 5636; R.C. 1899, § 5636; R.C. 1905, § 7235; C.L. 1913, § 7853; R.C. 1943, § 32-3005.

Derivation:

Wait’s (N.Y.) Code, 379; Harston’s (Cal.) Practice, 992.

32-30-06. Further pleadings.

Further pleadings and proceedings shall be as provided in the North Dakota Rules of Civil Procedure.

Source:

C. Civ. P. 1877, § 430; R.C. 1895, § 5637; R.C. 1899, § 5637; R.C. 1905, § 7236; C.L. 1913, § 7854; R.C. 1943, § 32-3006.

Derivation:

Wait’s (N.Y.) Code, 380; Harston’s (Cal.) Practice, 992.

32-30-07. Pleadings verified.

The answer and reply must be verified in the like cases and manner and be subject to the same rules as the answer and reply in a civil action.

Source:

C. Civ. P. 1877, § 431; R.C. 1895, § 5638; R.C. 1899, § 5638; R.C. 1905, § 7237; C.L. 1913, § 7855; R.C. 1943, § 32-3007.

Derivation:

Wait’s (N.Y.) Code, 381.

CHAPTER 32-31 Foreclosure of Tax Liens

32-31-01. Jurisdiction of district court in foreclosure of tax lien.

In any case in which the owner of real estate has been given notice of tax lien under chapter 57-20 for general taxes, for special assessments, for assessments of irrigation districts, for drain assessments, or for both general taxes and any such special taxes or assessments, the district court of the proper county shall have jurisdiction in an action in equity brought for that purpose to foreclose the lien of the delinquent taxes and assessments for which such land was noticed and to enter judgment foreclosing the same and decreeing that the same shall be sold under special execution in a manner similar to that prescribed in case of the foreclosure by action of a mortgage or other lien upon real property.

If in such action it shall appear that the taxes or assessments are invalid or void by reason of noncompliance with the law, the court shall determine the true and just amount which the property attempted to be so assessed should pay to make the same uniform with other taxes and assessments for the same purpose, and judgment must be rendered and given against the property liable for such taxes or assessments without regard to the proceedings had for the levy thereof, and such judgment shall be a lien upon the property upon which the taxes or assessments shall have been levied, of equal force and effect as the lien of the tax or assessment, and the lien of such judgment shall be enforced by the court in such action.

Source:

S.L. 1925, ch. 200, § 1; 1925 Supp. § 2214a1; R.C. 1943, § 32-3101; S.L. 1945, ch. 229, § 1; 1957 Supp., § 32-3101; 1999, ch. 503, § 6.

Cross-References.

Action, foreclosure of real estate mortgages by, see N.D.C.C. ch. 32-19.

Advertisement, foreclosure of real estate mortgages by, see N.D.C.C. ch. 35-22.

Foreclosure in favor of deceased person or to estate or personal representative legalized, see N.D.C.C. § 1-04-10.

Relief from hardships and defaults, see N.D.C.C. ch. 28-29.

DECISIONS UNDER PRIOR LAW

Court of Common Law or Equity.

A proceeding in a court of common law or equity for the collection of delinquent taxes under S.L. 1897, ch. 67 was a suit within the meaning of the federal removal statute. In re Stutsman County, 88 F. 337, 1898 U.S. App. LEXIS 2794 (C.C.D.N.D. 1898).

Collateral References.

Taxation 635-650.

72 Am. Jur. 2d, State and Local Taxation, § 812 et seq.

85 C.J.S. Taxation, §§ 1133-1177.

32-31-02. Procedure in equity governs.

The ordinary procedure in an equity case shall apply to an action brought under the provisions of this chapter. The court shall include in its decree such provision as will permit such period of redemption from execution sale as may be necessary to give to those entitled to redeem at least as long a period of redemption as they would have had if the foreclosure of tax lien in question had been valid in all respects and tax deed thereunder had been applied for at the earliest date permitted under statutes with reference to procuring tax deeds under tax lien foreclosures. The remedy provided by this chapter shall be cumulative and in addition to all other remedies and shall not be held to impair or detract from any other remedy provided by any other statute or statutes.

Source:

S.L. 1925, ch. 200, § 1; 1925 Supp., § 2214a1; R.C. 1943, § 32-3102; S.L. 1999, ch. 503, § 7.

32-31-03. Action brought by whom.

An action to foreclose a tax lien shall be brought in the name of the county in which such real estate is situated as plaintiff, and may be instituted by the attorney general or by the state’s attorney of such county.

Source:

S.L. 1925, ch. 200, § 2; 1925 Supp., § 2214a2; R.C. 1943, § 32-3103; S.L. 1945, ch. 229, § 2; 1957 Supp., § 32-3103; S.L. 1999, ch. 503, § 8.

32-31-04. Special counsel.

If the attorney general or state’s attorney of such county shall fail or refuse to institute an action, or if the board of county commissioners of the county interested, or the governing board of any city or school district interested in such taxes, shall desire to be represented by additional counsel, the district court, upon application, may enter an order appointing special counsel to represent such county, city, or school district.

Source:

S.L. 1923, ch. 200, § 2; 1925 Supp., § 2214a2; R.C. 1943, § 32-3104.

32-31-05. County treasurer to bid at execution sale.

The county treasurer shall attend the execution sale held pursuant to the decree in any action to foreclose a tax lien in which the county is plaintiff, and if there are no other bidders offering the amount of the judgment plus interest and accrued and accruing costs, the county treasurer shall bid such amount in the name of the county and the sheriff shall sell the same to the county, but the county shall not be required to pay any cash upon such sale.

Source:

S.L. 1925, ch. 200, § 3; 1925 Supp., § 2214a3; R.C. 1943, § 32-3105.

32-31-06. Disposal of land by county.

If redemption is not made from the execution sale at the expiration of the period of redemption, a sheriff’s deed shall be issued to the county, and the board of county commissioners shall dispose of the land by sale as in other cases. Out of the proceeds of such sale, after paying the costs of such action and of the sale, there shall be paid all general taxes, or if the sum realized is not sufficient to pay all general taxes, then the county auditor shall apportion the amount realized ratably among the state and the several interested taxing districts. Irrigation district assessments and hail insurance taxes shall be considered general taxes in making such apportionment. After paying all general taxes, such portion of the balance as may be necessary shall be applied in payment of special assessments, or if the amount is not sufficient to pay special assessments in full, then the amount available shall be apportioned ratably among the special assessment funds entitled to share therein. Any balance remaining after the payment of all costs, general taxes, irrigation district assessments, hail insurance taxes, and special assessments shall be paid into the general fund of the county.

Source:

S.L. 1925, ch. 200, § 3; 1925 Supp., § 2214a3; R.C. 1943, § 32-3106; S.L. 1945, ch. 229, § 3; 1957 Supp., § 32-3106.

32-31-07. Sale to cash purchaser at execution sale.

If, however, the real estate is sold by the sheriff at execution sale to a cash purchaser, the sheriff shall pay over to the clerk of the district court the proceeds of the sale to be disposed of in accordance with the order of the court.

Source:

S.L. 1925, ch. 200, § 3; 1925 Supp., § 2214a3; R.C. 1943, § 32-3107.

CHAPTER 32-32 Special Proceedings, General Provisions

32-32-01. Definition.

“Special proceedings” within the meaning of this chapter shall include the writs of certiorari, mandamus, and prohibition.

Source:

R.C. 1943, § 32-3201.

Cross-References.

Definition of special proceedings generally, see N.D.C.C. § 32-01-04.

Notes to Decisions

Writ of Prohibition.

A writ of prohibition is a special proceeding. An order denying relief in a special proceeding is appealable. Walker v. Schneider, 477 N.W.2d 167, 1991 N.D. LEXIS 187 (N.D. 1991).

DECISIONS UNDER PRIOR LAW

Habeas Corpus.

Habeas corpus proceedings were not governed by C. Civ. P. 1877, ch. 39 regulating special proceedings. Carruth v. Taylor, 8 N.D. 166, 77 N.W. 617, 1898 N.D. LEXIS 41 (N.D. 1898).

32-32-02. Parties to.

When a special proceeding is prosecuted by one having a special interest in the proceeding, it shall not be necessary for the state to be joined as plaintiff therein, but the person prosecuting the same shall be known as the plaintiff and the adverse party as the defendant.

Source:

C. Civ. P. 1877, § 683; R.C. 1895, § 6096; R.C. 1899, § 6096; R.C. 1905, § 7808; C.L. 1913, § 8443; R.C. 1943, § 32-3202.

Notes to Decisions

Public Officer.

One who has a certificate of appointment to office may bring mandamus in his own name to compel a recognition of his rights. Chandler v. Starling, 19 N.D. 144, 121 N.W. 198 (N.D. 1909).

State.

A special proceeding to enforce a right where the state as such is concerned should be had in the name of the state State ex rel. Dakota Hail Ass'n v. Carey, 2 N.D. 36, 49 N.W. 164, 1891 N.D. LEXIS 22 (N.D. 1891).

The state need not be joined as a party plaintiff in proceedings by taxpayer to resist and annul an unlawful tax against property of plaintiff. Duluth Elevator Co. v. White, 11 N.D. 534, 11 N.D. 634, 90 N.W. 12, 1902 N.D. LEXIS 175 (N.D. 1902).

State Budget Board.

The state budget board could maintain an action for a declaratory judgment against officers, members of boards and commissions, and industrial undertakings carried on by the state, to determine if defendants were required to furnish estimate of necessary expenditures. LANGER v. STATE, 69 N.D. 129, 284 N.W. 238, 1939 N.D. LEXIS 137 (N.D. 1939).

Collateral References.

Certiorari 37; Mandamus 145-151; Prohibition 19.

14 Am. Jur. 2d, Certiorari, § 55; 52 Am. Jur. 2d, Mandamus, §§ 378 et seq.; 63A Am. Jur. 2d, Prohibition, §§ 78, 79.

14 C.J.S. Certiorari, § 33; 55 C.J.S. Mandamus, §§ 48-59, 338-346; 72A C.J.S. Prohibition, §§ 49, 50.

32-32-03. Judgment in special proceeding defined — Motion and order.

A judgment in a special proceeding is the final determination of the rights of the parties therein. The definitions of a motion and an order in a civil action are applicable to similar acts in a special proceeding.

Source:

C. Civ. P. 1877, § 684; R.C. 1895, § 6097; R.C. 1899, § 6097; R.C. 1905, § 7809; C.L. 1913, § 8444; R.C. 1943, § 32-3203.

Collateral References.

Certiorari 69; Mandamus 174, 178; Prohibition 31.

14 Am. Jur. 2d, Certiorari, §§ 110-113; 52 Am. Jur. 2d, Mandamus, §§ 448-454; 63A Am. Jur. 2d, Prohibition, §§ 86-89.

14 C.J.S. Certiorari, §§ 111, 115; 55 C.J.S. Mandamus, § 419; 72A C.J.S. Prohibition, § 70.

Summary judgment in mandamus or prohibition cases, 3 A.L.R.3d 675.

Res judicata, judgment granting or denying writ of mandamus or prohibition as, 21 A.L.R.3d 206.

32-32-04. What writs issue in vacation.

Writs of certiorari, mandamus, and prohibition may be issued by a judge of the district court in vacation, and when issued by a judge of the district court may be made returnable and a hearing held thereon in vacation.

Source:

C. Civ. P. 1877, § 712; R.C. 1895, § 6127; R.C. 1899, § 6127; R.C. 1905, § 7839; C.L. 1913, § 8474; R.C. 1943, § 32-3204.

Derivation:

Harston’s (Cal.) Practice, 165, 167, 1108.

Notes to Decisions

Issuance in Chambers.

The writ may be issued by the judge at chambers. Territory ex rel. Eisenmann v. Shearer, 8 N.W. 135, 2 Dakota 332, 1880 Dakota LEXIS 6 (Dakota 1880).

32-32-05. Rules of practice.

Except as otherwise provided in chapters 32-33, 32-34, and 32-35, the provisions of title 28 are applicable to and constitute the rules of practice in the proceedings mentioned in this chapter.

Source:

C. Civ. P. 1877, § 713; R.C. 1895, § 6128; R.C. 1899, § 6128; R.C. 1905, § 7840; C.L. 1913, § 8475; R.C. 1943, § 32-3205.

Derivation:

Harston’s (Cal.) Practice, 1109.

32-32-06. New trials and appeals.

The provisions of the chapters relative to new trials and appeals in title 28, except insofar as they are inconsistent with the provisions of chapters 32-33, 32-34, and 32-35, apply to the proceedings mentioned in this chapter.

Source:

C. Civ. P. 1877, § 714; R.C. 1895, § 6129; R.C. 1899, § 6129; R.C. 1905, § 7841; C.L. 1913, § 8476; R.C. 1943, § 32-3206.

Derivation:

Harston’s (Cal.) Practice, 1110.

CHAPTER 32-33 Writ of Certiorari

32-33-01. When and by whom writ of certiorari granted.

A writ of certiorari shall be granted by the supreme court or district court when an officer, board, tribunal, or inferior court has exceeded the jurisdiction of such officer, board, tribunal, or inferior court, as the case may be, and there is no appeal, nor, in the judgment of the court, any other plain, speedy, and adequate remedy, and also when, in the judgment of the court, it is deemed necessary to prevent miscarriage of justice.

Source:

C. Civ. P. 1877, § 685; R.C. 1895, § 6098; R.C. 1899, § 6098; R.C. 1905, § 7810; C.L. 1913, § 8445; S.L. 1919, ch. 76, § 1; 1925 Supp., § 8445; R.C. 1943, § 32-3301.

Derivation:

Harston’s (Cal.) Practice, 1068.

Notes to Decisions

Agency Decision Without Hearing.

There is a basis for challenging the jurisdiction of an agency when no hearing is afforded to the claimant, but only where there was no right of appeal from the decision made without a hearing. Manikowske v. North Dakota Workmen's Compensation Bureau, 373 N.W.2d 884, 1985 N.D. LEXIS 391 (N.D. 1985).

Burden of Proof.

In a certiorari proceeding the appellant has the burden of showing prejudicial error affirmatively by the record. Brissman v. Thistlethwaite, 49 N.D. 417, 192 N.W. 85, 1922 N.D. LEXIS 72 (N.D. 1922).

Change of Venue.

Certiorari does not lie to review an order denying a change of venue. Squire v. County Court, 25 N.D. 468, 141 N.W. 1135, 1913 N.D. LEXIS 123 (N.D. 1913).

Denial of Motion to Dismiss Indictment.

Proper procedure to challenge order of trial court denying motion to dismiss the indictment when insufficiency of evidence is asserted is by application to supreme court for a writ of certiorari. State v. Nordquist, 309 N.W.2d 109, 1981 N.D. LEXIS 344 (N.D. 1981).

Denial of Writ.

Certiorari does not lie where the party aggrieved has an adequate remedy by appeal. Lewis v. Gallup, 5 N.D. 384, 67 N.W. 137 (1896), decided prior to the adoption of N.D.R.Civ. P. 12. St. Paul, M. & M. Ry. v. Blakemore, 17 N.D. 67, 114 N.W. 730, 1908 N.D. LEXIS 9 (N.D. 1908).

Certiorari will not lie where there is an adequate remedy by an application to vacate a stay of execution. Schafer v. District Court, 21 N.D. 476, 131 N.W. 240, 1911 N.D. LEXIS 103 (N.D. 1911).

Certiorari is denied where there is no appearance of excess of jurisdiction. Albrecht v. Zimmerley, 23 N.D. 337, 136 N.W. 240, 1912 N.D. LEXIS 90 (N.D. 1912).

Certiorari will not lie to review the sufficiency of the evidence to justify the dismissal of teachers by the state board of higher education where the board had authority to dismiss without cause and without hearing. Posin v. State Bd. of Higher Educ., 86 N.W.2d 31, 1957 N.D. LEXIS 163 (N.D. 1957).

In a case in which a disciplinary proceeding was commenced against a prisoner for having in his possession certain religious magazines given to him by other inmates and for possessing a picture of an American flag the prisoner had cut out of a newspaper in violation of prison contraband rules, the district court properly denied the prisoner’s application for a writ of certiorari because the warden did not exceed his authority in adopting and enforcing these rules; the rules were reasonable and reasonably related to legitimate penological interests and did not violate the prisoner’s constitutional rights. Larson v. Schuetzle, 2006 ND 78, 712 N.W.2d 617, 2006 N.D. LEXIS 78 (N.D.), cert. denied, 549 U.S. 910, 127 S. Ct. 246, 166 L. Ed. 2d 193, 2006 U.S. LEXIS 6097 (U.S. 2006).

District Attorney.

A state’s attorney may invoke certiorari against a district judge who has exceeded his jurisdiction in ordering the attorney’s salary depleted. State ex rel. Clyde v. Lauder, 11 N.D. 136, 90 N.W. 564, 1902 N.D. LEXIS 194 (N.D. 1902).

Erroneous Conclusion of Law by Small Claims Court.

Small claims court civil judgment based upon court’s erroneous conclusion of law that is not subject to appeal pursuant to N.D.C.C. § 27-08.1-04, is also not subject to review by writ of certiorari where the small claims court had jurisdiction of the subject matter and the parties. Kostelecky v. Engelter, 278 N.W.2d 776, 1979 N.D. LEXIS 183 (N.D. 1979).

Habeas Corpus.

A final order discharging a petitioner in a habeas corpus proceeding is not reviewable by appeal, but may be reviewed through the supreme court’s exercise of the constitutional power of superintending control. State ex rel. Bismarck v. District Court, 64 N.D. 399, 253 N.W. 744, 1934 N.D. LEXIS 213 (N.D. 1934).

Insanity Commitment.

Where information was filed charging accused with second degree murder, trial court acted within jurisdiction and regularly pursued authority in committing accused to state hospital for mental examination in view of accused’s plea of not guilty and in light of information concerning accused’s previous psychiatric treatment. State v. Katsoulis, 148 N.W.2d 269, 1967 N.D. LEXIS 154 (N.D. 1967).

“Jurisdiction” Defined.

Jurisdiction as used in this section means “power and authority to act with respect to any particular subject matter”. State ex rel. Dreyer v. Brekke, 75 N.D. 468, 28 N.W.2d 598, 1947 N.D. LEXIS 84 (N.D. 1947).

In the context of a certiorari proceeding, “jurisdiction” means the power and authority to act with respect to any particular subject matter. Manikowske v. North Dakota Workmen's Compensation Bureau, 373 N.W.2d 884, 1985 N.D. LEXIS 391 (N.D. 1985).

The phrase “pursued regularly the authority” contained in N.D.C.C. § 32-33-09 is synonymous with “jurisdiction” as that term is used in this section. Manikowske v. North Dakota Workmen's Compensation Bureau, 373 N.W.2d 884, 1985 N.D. LEXIS 391 (N.D. 1985).

Jurisdiction of Agency.

Where the jurisdiction of an agency is invoked by a party, that party cannot subsequently challenge the agency’s jurisdiction by certiorari. Manikowske v. North Dakota Workmen's Compensation Bureau, 373 N.W.2d 884, 1985 N.D. LEXIS 391 (N.D. 1985).

Jurisdiction of Inferior Court.

Writ of certiorari may be used to determine if inferior court lacked personal jurisdiction over the parties or subject matter jurisdiction. Bernhardt v. Dittus, 265 N.W.2d 684, 1978 N.D. LEXIS 230 (N.D. 1978).

Where the district court concluded that the administrative process would be insufficient to review the denial of liquor licenses, a writ of certiorari was a proper means of determining whether the attorney general acted within his jurisdiction in deciding whether or not to issue the licenses. Lamplighter Lounge v. State ex rel. Heitkamp, 510 N.W.2d 585, 1994 N.D. LEXIS 3 (N.D. 1994).

Mandamus.

A final order or judgment in a mandamus proceeding is not reviewable on certiorari. State ex rel. Brunette v. Pollock, 35 N.D. 430, 160 N.W. 511, 1916 N.D. LEXIS 168 (N.D. 1916).

Municipal Corporations.

Certiorari does not lie to compel a city council to detach territory from the corporation. State ex rel. Claver v. Broute, 50 N.D. 753, 197 N.W. 871, 1923 N.D. LEXIS 5 (N.D. 1923).

Certiorari does not lie to review the discretion of the board of adjustment in refusing an apartment house permit in a residence district. Livingston v. Peterson, 59 N.D. 104, 228 N.W. 816, 1930 N.D. LEXIS 128 (N.D. 1930).

Action of city commission in denying application for a license to operate taxicabs was not reviewable by writ of certiorari. Bryan v. Olson, 68 N.D. 605, 282 N.W. 405, 1938 N.D. LEXIS 150 (N.D. 1938).

Municipal parking meter ordinance was not reviewable by certiorari. State ex rel. Dreyer v. Brekke, 75 N.D. 468, 28 N.W.2d 598, 1947 N.D. LEXIS 84 (N.D. 1947).

Party in Interest.

An application for a writ of certiorari must be made by a party interested. Sanderson v. Winchester, 10 N.D. 85, 85 N.W. 988, 1901 N.D. LEXIS 2 (N.D. 1901).

Prerogative Writ.

The rule in supreme court is to issue the writ of certiorari as a prerogative writ, and not to enforce a private right nor redress a private wrong. Duluth Elevator Co. v. White, 11 N.D. 534, 11 N.D. 634, 90 N.W. 12, 1902 N.D. LEXIS 175 (N.D. 1902).

Preventive Action.

The purpose of certiorari is to annul, not to restrain or prohibit, and it is not appropriate to prevent township supervisors from issuing bonds. Molander v. Swenson, 54 N.D. 391, 210 N.W. 9, 1926 N.D. LEXIS 159 (N.D. 1926).

Proper Remedy.

Where jurisdiction could not have been conferred upon the district court originally, nor by appeal, certiorari is a proper remedy. Champion v. Board of County Comm'rs, 41 N.W. 739, 5 Dakota 416, 1889 Dakota LEXIS 6 (Dakota 1889).

Certiorari is not a proper remedy to correct an error of law, such remedy being by appeal. Lewis v. Gallup, 5 N.D. 384, 67 N.W. 137, 1896 N.D. LEXIS 36 (N.D. 1896).

Certiorari is the proper remedy to review proceedings of a court-martial for the purpose of determining whether it has exceeded its jurisdiction. State ex rel. Poole v. Peake, 22 N.D. 457, 135 N.W. 197, 1912 N.D. LEXIS 58 (N.D. 1912).

Public Service Commission Order.

If cooperative felt that public service commission had exceeded its jurisdiction in issuing temporary certificate of convenience and necessity without hearing and that it had no other adequate remedy, it had available writ of certiorari. Mor-Gran-Sou Elec. Coop. v. Montana-Dakota Utils. Co., 160 N.W.2d 521, 1968 N.D. LEXIS 72 (N.D. 1968).

Review Where Appeal Not Allowed.

That the decision of the state engineer is not appealable does not preclude the decision from being reviewed when there is no appeal allowed. Administrative determinations may be reviewed through special proceedings such as those provided in this section and N.D.C.C. §§ 32-34-02 and 32-35-02. Investment Rarities v. Bottineau County Water Resource Dist., 396 N.W.2d 746, 1986 N.D. LEXIS 461 (N.D. 1986).

School Districts.

Certiorari does not lie to review annexation proceedings of a school district, the validity of which may or may not depend upon jurisdiction. State ex rel. Mayo v. Thursby-Butte Special Sch. Dist., 45 N.D. 555, 178 N.W. 787, 1920 N.D. LEXIS 159 (N.D. 1920); Common Sch. Dist. v. Fargo, 78 N.D. 583, 51 N.W.2d 364, 1952 N.D. LEXIS 67 (N.D. 1952).

Scope of Review.
—In General.

A writ of certiorari is not confined to a review of judicial or quasi-judicial proceedings but extends to every case where the inferior courts, officers, boards, or tribunals have exceeded their jurisdiction, and there is no writ of error, appeal, or any other plain, speedy, and adequate remedy. State ex rel. Johnson v. Clark, 21 N.D. 517, 131 N.W. 715, 1911 N.D. LEXIS 125 (N.D. 1911).

Certiorari will lie only to review acts in excess of jurisdiction. State ex rel. Dreyer v. Brekke, 75 N.D. 468, 28 N.W.2d 598, 1947 N.D. LEXIS 84 (N.D. 1947); Common Sch. Dist. v. Fargo, 78 N.D. 583, 51 N.W.2d 364, 1952 N.D. LEXIS 67 (N.D. 1952).

On certiorari, inquiry can go only to determine question of jurisdiction; whether annexation review commission committed errors of law or fact in exercise of its authority could not be considered in certiorari proceeding no matter how erroneous the decision might be. City of Fargo v. Annexation Review Comm'n, 148 N.W.2d 338, 1966 N.D. LEXIS 149 (N.D. 1966).

—Removal of Officials.

The jurisdiction of the governor to remove a commissioner of the workmen’s compensation bureau is reviewable on certiorari. State ex rel. Wehe v. Frazier, 47 N.D. 314, 182 N.W. 545, 1921 N.D. LEXIS 116 (N.D. 1921).

Certiorari is an appropriate proceeding to review the jurisdiction of the governor in a proceeding to remove the highway commissioner. State ex rel. Olson v. Welford, 65 N.D. 522, 260 N.W. 593, 1935 N.D. LEXIS 138 (N.D. 1935).

Action of board of higher education in discharging agricultural college faculty members was not reviewable by certiorari. Posin v. State Bd. of Higher Educ., 86 N.W.2d 31, 1957 N.D. LEXIS 163 (N.D. 1957).

—Restrictions.

Certiorari will not lie to review alleged errors not going to the jurisdiction of an inferior court, nor where there is an adequate remedy by appeal. State ex rel. Noggle v. Crawford, 24 N.D. 8, 138 N.W. 2, 1912 N.D. LEXIS 3 (N.D. 1912).

The writ of certiorari cannot be used for the purpose of reviewing the merits of the case, and of weighing the evidence. Cofman v. Ousterhous, 40 N.D. 390, 168 N.W. 826, 1918 N.D. LEXIS 91 (N.D. 1918).

Certiorari will lie only to review acts in excess of jurisdiction, and not to review the sufficiency or insufficiency of the evidence where jurisdiction is shown. State ex rel. Wehe v. Frazier, 47 N.D. 314, 182 N.W. 545, 1921 N.D. LEXIS 116 (N.D. 1921); State ex rel. Olson v. Welford, 65 N.D. 522, 260 N.W. 593, 1935 N.D. LEXIS 138 (N.D. 1935).

The appellate court, under a writ of certiorari, may not consider the sufficiency of the evidence or review the findings of the lower court except for the purpose of determining whether the lower court has exceeded its jurisdiction. Baker v. Lenhart, 50 N.D. 30, 195 N.W. 16, 1922 N.D. LEXIS 89 (N.D. 1922); Peterson v. Points, 67 N.D. 631, 275 N.W. 867, 1937 N.D. LEXIS 122 (N.D. 1937).

The review in certiorari is limited to a determination as to whether the board whose action is questioned acted within its jurisdiction. State ex rel. Brunette v. Sutton, 71 N.D. 530, 3 N.W.2d 106, 1942 N.D. LEXIS 87 (N.D. 1942).

On certiorari, review by the district court and by the supreme court is limited to the sole question of whether the bureau has exceeded its jurisdiction. Manikowske v. North Dakota Workmen's Compensation Bureau, 373 N.W.2d 884, 1985 N.D. LEXIS 391 (N.D. 1985).

Sentence in Excess of Maximum Provided by Law.

Where the trial court imposed upon a person convicted of a crime a sentence in excess of that permitted by statute for that crime, the court exceeded its jurisdiction in imposing a sentence not permitted by law; such sentence is reviewable by the supreme court on certiorari. Waltman v. Austin, 142 N.W.2d 517, 1966 N.D. LEXIS 172 (N.D. 1966).

Workers Compensation.

Certiorari does not lie to review a finding of the workmen’s compensation bureau as to a matter of fact within, and not touching, its jurisdiction. State ex rel. Craig v. North Dakota Workmen's Compensation Bureau, 53 N.D. 649, 207 N.W. 555, 1925 N.D. LEXIS 15 (N.D. 1925).

Claimant who invoked the jurisdiction of the workers compensation bureau when he filed his claim for benefits could not later challenge the jurisdiction of the bureau by certiorari. Manikowske v. North Dakota Workmen's Compensation Bureau, 373 N.W.2d 884, 1985 N.D. LEXIS 391 (N.D. 1985).

Claimant who failed to appeal from either the August 1 order or the December 27 order of the workers compensation bureau could not later raise issues which he could have raised on appeal by certiorari. Manikowske v. North Dakota Workmen's Compensation Bureau, 373 N.W.2d 884, 1985 N.D. LEXIS 391 (N.D. 1985).

Collateral References.

Certiorari 1-34.

14 Am. Jur. 2d, Certiorari, § 8 et seq.

14 C.J.S. Certiorari, §§ 2, 4-25, 30.

Jurisdiction: existence of jurisdictional facts found by inferior tribunal as subject of inquiry on certiorari, 5 A.L.R.2d 675.

Professional association, relief by certiorari from expulsion from, 20 A.L.R.2d 531.

Applicability of statute of limitations or doctrine of laches to certiorari, 40 A.L.R.2d 1381.

Plea of guilty in justice of the peace or similar inferior court as precluding certiorari, 42 A.L.R.2d 995, 1014.

Veterans: certiorari as remedy to determine rights of noncivil service public employee, with respect to discharge, under state veterans’ tenure statute, 58 A.L.R.2d 960, 1005.

Exclusion or inclusion of terminal Sunday or holiday in computing time for taking or perfecting certiorari, 61 A.L.R.2d 482.

Driver’s license, review by certiorari of administrative order revoking or suspending, 97 A.L.R.2d 1367, 1381.

Contempt adjudication or conviction, appealability of, 33 A.L.R.3d 448.

Contempt adjudication or conviction as subject to review, other than by appeal or writ of error, 33 A.L.R.3d 589.

Law Reviews.

Judicial Review of Decisions of the Workmen’s Compensation Bureau of North Dakota, 3 Dak. L. Rev. 16 (1930).

The Writ of Certiorari in North Dakota, 27 N.D. L. Rev. 271 (1951).

32-33-02. How application made.

The application must be made on affidavit by the party beneficially interested, and the court may require a notice of the application to be given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ without notice.

Source:

C. Civ. P. 1877, § 686; R.C. 1895, § 6099; R.C. 1899, § 6099; R.C. 1905, § 7811; C.L. 1913, § 8446; R.C. 1943, § 32-3302.

Derivation:

Harston’s (Cal.) Practice, 1069.

Notes to Decisions

Party Beneficially Interested.

A complainant is beneficially interested within the meaning of the law if the action complained of, although common in character, be special in amount or degree. Champion v. Board of County Comm'rs, 41 N.W. 739, 5 Dakota 416, 1889 Dakota LEXIS 6 (Dakota 1889).

The plaintiff in an attachment suit is a person beneficially interested. State ex rel. Enderlin State Bank v. Rose, 4 N.D. 319, 58 N.W. 514, 1894 N.D. LEXIS 16 (N.D. 1894).

An application for a writ to review an order of a district judge directing the destruction of certain gambling devices, which shows that the applicant has transferred his entire interest in such devices and has no interest therein at the time of the application, is not made by the party beneficially interested within the meaning of the statute. Sanderson v. Winchester, 10 N.D. 85, 85 N.W. 988, 1901 N.D. LEXIS 2 (N.D. 1901).

A citizen and taxpayer of territory proposed to be taken into a city is a party beneficially interested, and is entitled to apply for a writ of certiorari to review the proceedings. State ex rel. Johnson v. Clark, 21 N.D. 517, 131 N.W. 715, 1911 N.D. LEXIS 125 (N.D. 1911).

The term “party beneficially interested” does not confine the applicant to one formally named as a party in the proceedings to be reviewed, but includes one beneficially interested in the court’s decision. Nelson v. Ecklund, 68 N.D. 724, 283 N.W. 273, 1938 N.D. LEXIS 162 (N.D. 1938).

Collateral References.

Certiorari 42, 46, 61.

14 Am. Jur. 2d, Certiorari, § 57 et seq.

14 C.J.S. Certiorari, §§ 41-52, 57, 61, 94.

32-33-03. To whom directed.

The writ may be directed to the inferior court, tribunal, board, or officer, or to any other person having the custody of the records or proceedings to be certified.

Source:

C. Civ. P. 1877, § 687; R.C. 1895, § 6100; R.C. 1899, § 6100; R.C. 1905, § 7812; C.L. 1913, § 8447; R.C. 1943, § 32-3303.

Derivation:

Harston’s (Cal.) Practice, 1070.

Notes to Decisions

Former Official.

A writ of certiorari cannot be directed to a former official after he has parted with the record which is sought to be reviewed. In re Dance, 2 N.D. 184, 49 N.W. 733 (1891).

Collateral References.

Certiorari 45.

14 Am. Jur. 2d, Certiorari, § 56.

14 C.J.S. Certiorari, § 56.

32-33-04. Requisites of writ.

The writ of certiorari shall command the party to whom it is directed to certify fully to the court issuing the writ, at a specified time and place, and to annex to the writ a transcript of the record and proceedings, describing or referring to them with convenient certainty, and a statement of other matter specified in and required by the writ, that the same may be reviewed by the court, and requiring the party in the meantime to desist from further proceedings in the matter to be reviewed.

Source:

C. Civ. P. 1877, § 688; R.C. 1895, § 6101; R.C. 1899, § 6101; R.C. 1905, § 7813; C.L. 1913, § 8448; R.C. 1943, § 32-3304.

Derivation:

Harston’s (Cal.) Practice, 1071.

Collateral References.

Certiorari 45.

14 Am. Jur. 2d, Certiorari, § 71.

32-33-05. To officer whose term has expired.

A writ of certiorari may be issued to and a return to a writ of certiorari may be made by an officer whose term of office has expired. Such an officer may be punished for a failure to make a return to the writ as required thereby, or to make a further return as required by an order for that purpose.

Source:

R.C. 1895, § 6102; R.C. 1899, § 6102; R.C. 1905, § 7814; C.L. 1913, § 8449; R.C. 1943, § 32-3305.

32-33-06. Stay of proceedings.

If a stay of proceedings is not intended, the words requiring the stay must be omitted from the writ. These words may be inserted or omitted in the sound discretion of the court, but if omitted, the power of the inferior court or officer is not suspended nor the proceedings stayed.

Source:

C. Civ. P. 1877, § 689; R.C. 1895, § 6103; R.C. 1899, § 6103; R.C. 1905, § 7815; C.L. 1913, § 8450; R.C. 1943, § 32-3306.

Derivation:

Harston’s (Cal.) Practice, 1072.

Collateral References.

Certiorari 47.

14 Am. Jur. 2d, Certiorari, § 74.

14 C.J.S. Certiorari, §§ 59, 60.

32-33-07. Other proofs permitted if officer dies or return incomplete.

If the officer or other person whose duty it is to make a return dies, absconds, or moves from the state, or becomes insane after the writ is issued and before making a return, or after making an insufficient return, and it appears that there is no other officer or person from whom a sufficient return can be procured by means of a new writ, the court in its discretion may permit affidavits or other written proofs relative to the matters not sufficiently returned to be produced and may hear the case accordingly. The court also in its discretion may permit either party to produce affidavits or other written proofs relative to any alleged error of fact or any other question of fact which is essential to the jurisdiction of the body or officer to make the determination to be reviewed, when the facts in relation thereto are not stated sufficiently in the return and the court is satisfied that they cannot be made to appear by means of an order for a further return.

Source:

C. Civ. P. 1877, § 689; R.C. 1895, § 6104; R.C. 1899, § 6104; R.C. 1905, § 7816; C.L. 1913, § 8451; R.C. 1943, § 32-3307.

Derivation:

Harston’s (Cal.) Practice, 1072.

32-33-08. How served.

The writ must be served in the same manner as a summons in a civil action except when otherwise expressly directed by the court.

Source:

C. Civ. P. 1877, § 690; R.C. 1895, § 6105; R.C. 1899, § 6105; R.C. 1905, § 7817; C.L. 1913, § 8452; R.C. 1943, § 32-3308.

Derivation:

Harston’s (Cal.) Practice, 1073.

Cross-References.

Service of civil summons, see N.D.R.Civ.P. 4(c).

Collateral References.

Certiorari 46.

14 Am. Jur. 2d, Certiorari, § 73.

14 C.J.S. Certiorari, § 58.

32-33-09. Extent of review.

Except as otherwise provided by law, the review upon a writ of certiorari cannot be extended further than to determine whether the inferior court, tribunal, board, or officer has pursued regularly the authority of such court, tribunal, board, or officer.

Source:

C. Civ. P. 1877, § 691; R.C. 1895, § 6106; R.C. 1899, § 6106; R.C. 1905, § 7818; C.L. 1913, § 8453; R.C. 1943, § 32-3309.

Derivation:

Harston’s (Cal.) Practice, 1074.

Notes to Decisions

Agency Decision Without Hearing.

There is a basis for challenging the jurisdiction of an agency when no hearing is afforded to the claimant, but only where there was no right of appeal from the decision made without a hearing. Manikowske v. North Dakota Workmen's Compensation Bureau, 373 N.W.2d 884, 1985 N.D. LEXIS 391 (N.D. 1985).

Constitutionality of Statute.

Constitutionality of a statute may not be considered in review on certiorari. State v. Katsoulis, 148 N.W.2d 269, 1967 N.D. LEXIS 154 (N.D. 1967); City of Fargo v. Annexation Review Comm'n, 148 N.W.2d 338, 1966 N.D. LEXIS 149 (N.D. 1966); State ex rel. Dreyer v. Brekke, 75 N.D. 468, 28 N.W.2d 598, 1947 N.D. LEXIS 84 (N.D. 1947).

Criminal Matters.

A review by certiorari of an order of a committing magistrate holding a defendant to answer, after a preliminary hearing, is limited to a determination of whether the magistrate pursued regularly the authority vested in him by statute. Green v. Whipple, 89 N.W.2d 881, 1958 N.D. LEXIS 78 (N.D. 1958).

Where information was filed charging accused with second degree murder, trial court acted within jurisdiction and regularly pursued authority in committing accused to state hospital for mental examination in view of accused’s plea of not guilty and in light of information concerning accused’s previous psychiatric treatment. State v. Katsoulis, 148 N.W.2d 269, 1967 N.D. LEXIS 154 (N.D. 1967).

Where the district court issued an order vacating its writ of certiorari, previously granted after full hearing, the result was that the defendant was bound over from the county court to the district court on the charge of obtaining money by false pretenses; in a proceeding under this section, the review by the district court of the action of the county court was properly limited to determining whether the county court, in holding the defendant for trial, properly followed the statutory guidelines for preliminary hearings in criminal matters, because the right to a preliminary hearing is derived solely from statute. State v. Persons, 201 N.W.2d 895, 1972 N.D. LEXIS 93 (N.D. 1972).

Findings of Inferior Tribunal.

The appellate court, under a writ of certiorari, may not consider the sufficiency of the evidence or review the findings of the lower court, except for the purpose of determining whether the lower court has exceeded its jurisdiction. Baker v. Lenhart, 50 N.D. 30, 195 N.W. 16, 1922 N.D. LEXIS 89 (N.D. 1922).

The appellate court, under a writ of certiorari, may not consider the sufficiency of the evidence or review the findings of an annexation review commission, except for the purpose of determining whether the commission has exceeded its jurisdiction. City of Fargo v. Annexation Review Comm'n, 123 N.W.2d 281, 1963 N.D. LEXIS 107 (N.D. 1963).

Jurisdiction of Agency.

Where the jurisdiction of an agency is invoked by a party, that party cannot subsequently challenge the agency’s jurisdiction by certiorari. Manikowske v. North Dakota Workmen's Compensation Bureau, 373 N.W.2d 884, 1985 N.D. LEXIS 391 (N.D. 1985).

Jurisdiction of Inferior Tribunal.

Where the inferior tribunal acts within its jurisdiction, no matter how erroneous the decision may be, the reviewing court has no power to change, annul, or reverse it in a proceeding in certiorari. Bishop v. Depositors Guar. Fund Com., 55 N.D. 178, 212 N.W. 828, 1927 N.D. LEXIS 19 (N.D. 1927).

The review in certiorari is limited to a determination as to whether the board whose action is questioned acted within its jurisdiction. State ex rel. Brunette v. Sutton, 71 N.D. 530, 3 N.W.2d 106, 1942 N.D. LEXIS 87 (N.D. 1942).

Certiorari will lie only to review acts in excess of jurisdiction. State ex rel. Dreyer v. Brekke, 75 N.D. 468, 28 N.W.2d 598, 1947 N.D. LEXIS 84 (N.D. 1947); Common Sch. Dist. v. Fargo, 78 N.D. 583, 51 N.W.2d 364, 1952 N.D. LEXIS 67 (N.D. 1952); Posin v. State Bd. of Higher Educ., 86 N.W.2d 31, 1957 N.D. LEXIS 163 (N.D. 1957).

On certiorari, the inquiry can go only to determine the question of jurisdiction; whether annexation review commission committed errors of law or fact in exercise of its authority could not be considered in certiorari proceeding no matter how erroneous the decision might be. City of Fargo v. Annexation Review Comm'n, 148 N.W.2d 338, 1966 N.D. LEXIS 149 (N.D. 1966).

Court properly denied motion for writ of certiorari on issue of probable cause to bind defendant over for sexual assault trial where trial court did not exceed its jurisdiction in finding probable cause. Heick v. Erickson, 2001 ND 200, 636 N.W.2d 913, 2001 N.D. LEXIS 230 (N.D. 2001).

Jurisdiction of the Attorney General.

Where the district court concluded that the administrative process would be insufficient to review the denial of liquor licenses, a writ of certiorari was a proper means of determining whether the attorney general acted within his jurisdiction in deciding whether or not to issue the licenses. Lamplighter Lounge v. State ex rel. Heitkamp, 510 N.W.2d 585, 1994 N.D. LEXIS 3 (N.D. 1994).

Order Denying Certiorari.

District court order denying writ of certiorari is a final determination of rights in a special proceeding and is appealable to the supreme court pursuant to N.D.C.C. § 28-27-02; supreme court’s standard of review is limited to the question of jurisdiction as required by this section. State v. Morrissey, 295 N.W.2d 307, 1980 N.D. LEXIS 251 (N.D. 1980).

Prison Warden.

In a case in which a disciplinary proceeding was commenced against a prisoner for having in his possession certain religious magazines given to him by other inmates and for possessing a picture of an American flag the prisoner had cut out of a newspaper in violation of prison contraband rules, the district court properly denied the prisoner’s application for a writ of certiorari because the warden did not exceed his authority in adopting and enforcing these rules; the rules were reasonable and reasonably related to legitimate penological interests and did not violate the prisoner’s constitutional rights. Larson v. Schuetzle, 2006 ND 78, 712 N.W.2d 617, 2006 N.D. LEXIS 78 (N.D.), cert. denied, 549 U.S. 910, 127 S. Ct. 246, 166 L. Ed. 2d 193, 2006 U.S. LEXIS 6097 (U.S. 2006).

“Pursued Regularly the Authority.”

The phrase “pursued regularly the authority” contained in this section is synonymous with “jurisdiction” as that term is used in N.D.C.C. § 32-33-01. Manikowske v. North Dakota Workmen's Compensation Bureau, 373 N.W.2d 884, 1985 N.D. LEXIS 391 (N.D. 1985).

Removal of Officer.

In a certiorari proceeding to review acts of governor in removing highway commissioner from office, it was beyond the province of the court to pass upon the weight or sufficiency of the testimony. State ex rel. Olson v. Welford, 65 N.D. 522, 260 N.W. 593, 1935 N.D. LEXIS 138 (N.D. 1935).

In reviewing an order by the governor dismissing a member of the board of administration, the court will ascertain only whether the governor acted within his jurisdiction and whether there was proof in the record to support the governor’s decision. State ex rel. Joos v. Guy, 125 N.W.2d 468, 1963 N.D. LEXIS 132 (N.D. 1963).

Review of Order Binding Defendant over for Trial.

On appeal from district court’s denial of a writ of certiorari to review order of county court of increased jurisdiction binding criminal defendant over for trial, supreme court would not weigh the evidence, but limited its review to whether or not there was some relevant evidence upon which the county court of increased jurisdiction made its finding of probable cause to bind defendant over for trial. State v. Skar, 313 N.W.2d 746, 1981 N.D. LEXIS 365 (N.D. 1981).

Scope of Review.
—In General.

On certiorari, review by the district court, and by the supreme court, is limited to the sole question of whether the bureau has exceeded its jurisdiction. Manikowske v. North Dakota Workmen's Compensation Bureau, 373 N.W.2d 884, 1985 N.D. LEXIS 391 (N.D. 1985).

Judicial review on a writ of certiorari “cannot be extended further than to determine whether the…officer has pursued regularly the authority of such…officer.” Jensen v. Powers, 472 N.W.2d 223, 1991 N.D. LEXIS 118 (N.D. 1991).

—Restrictions.

On certiorari, review by the district court, and by the supreme court, is limited to the sole question of whether the bureau has exceeded its jurisdiction. Manikowske v. North Dakota Workmen's Compensation Bureau, 373 N.W.2d 884, 1985 N.D. LEXIS 391 (N.D. 1985).

Workers Compensation.

Claimant who invoked the jurisdiction of the workers compensation bureau when he filed his claim for benefits could not later challenge the jurisdiction of the bureau by certiorari. Manikowske v. North Dakota Workmen's Compensation Bureau, 373 N.W.2d 884, 1985 N.D. LEXIS 391 (N.D. 1985).

Claimant who failed to appeal from either the August 1 order or the December 27 order of the workers compensation bureau could not later raise issues which he could have raised on appeal by certiorari. Manikowske v. North Dakota Workmen's Compensation Bureau, 373 N.W.2d 884, 1985 N.D. LEXIS 391 (N.D. 1985).

DECISIONS UNDER PRIOR LAW

Certiorari Proceeding.

Certiorari proceeding was not an “action” within meaning of provision relating to procedure on appeals to supreme court in actions tried to court without jury; trial de novo was not available. City of Fargo v. Annexation Review Comm'n, 148 N.W.2d 338, 1966 N.D. LEXIS 149 (N.D. 1966).

Collateral References.

Certiorari 63-68.

14 Am. Jur. 2d, Certiorari, §§ 92-102.

14 C.J.S. Certiorari, §§ 92-94, 96-110.

32-33-10. Return of writ and hearing.

If the return to the writ is defective, the court may order a further return to be made. Any record made by the inferior court, officer, board, or tribunal may be impeached by the return to the writ, or in the cases mentioned in section 32-33-07, by affidavits or other written proof. Upon the final hearing the court must hear the parties, or such of them as may attend for that purpose, and thereupon may give judgment either affirming, annulling, or modifying the proceedings below.

Source:

C. Civ. P. 1877, § 692; R.C. 1895, § 6107; R.C. 1899, § 6107; R.C. 1905, § 7819; C.L. 1913, § 8454; R.C. 1943, § 32-3310.

Derivation:

Harston’s (Cal.) Practice, 1075.

Collateral References.

Certiorari 48-58, 61-69.

14 Am. Jur. 2d, Certiorari, §§ 75-79, 103-109.

14 C.J.S. Certiorari, §§ 61-68, 86-94, 96-117.

32-33-11. Judgment sent below.

A copy of the judgment signed by the clerk must be transmitted to the inferior court, tribunal, board, or officer having custody of the record or proceedings certified.

Source:

C. Civ. P. 1877, § 693; R.C. 1895, § 6108; R.C. 1899, § 6108; R.C. 1905, § 7820; C.L. 1913, § 8455; R.C. 1943, § 32-3311.

Derivation:

Harston’s (Cal.) Practice, 1076.

32-33-12. Judgment roll.

A copy of the judgment signed by the clerk, entered upon or attached to the writ and return, constitutes the judgment roll.

Source:

C. Civ. P. 1877, § 694; R.C. 1895, § 6109; R.C. 1899, § 6109; R.C. 1905, § 7821; C.L. 1913, § 8456; R.C. 1943, § 32-3312.

Derivation:

Harston’s (Cal.) Practice, 1077.

CHAPTER 32-34 Writ of Mandamus

32-34-01. By and to whom writ of mandamus issued.

The writ of mandamus may be issued by the supreme and district courts to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled and from which the party is precluded unlawfully by such inferior tribunal, corporation, board, or person.

Source:

C. Civ. P. 1877, § 695; R.C. 1895, § 6110; R.C. 1899, § 6110; R.C. 1905, § 7822; C.L. 1913, § 8457; R.C. 1943, § 32-3401.

Derivation:

Harston’s (Cal.) Practice, 1085.

Notes to Decisions

Administrative Agency Decisions.

Mandamus is available to compel an administrative agency to perform a ministerial duty which the law requires the agency to perform, but mandamus is not available to direct how, or in whose favor, the agency decides a case. Tooley v. Alm, 515 N.W.2d 137, 1994 N.D. LEXIS 89 (N.D. 1994).

Mandamus is not available if an appeal is authorized from an adverse decision of an administrative agency. Tooley v. Alm, 515 N.W.2d 137, 1994 N.D. LEXIS 89 (N.D. 1994).

An employee’s petition for a writ of mandamus to compel the Director of the Office of Administrative Hearings to appoint an attorney to preside over the employee’s hearing was properly denied; the employee could have raised the issue on appeal and therefore had a plain, speedy and adequate remedy in the ordinary course of the law. Wutzke v. Hoberg, 2004 ND 42, 675 N.W.2d 179, 2004 N.D. LEXIS 54 (N.D. 2004).

Agency may consult its attorney if there is a reasonable probability of some form of legal action, either litigation or an administrative proceeding; therefore, an employee’s petition for a writ of mandamus was properly denied because a governing authority was not required to allow an open meeting under N.D.C.C. § 44-04-19.1 where an attorney was consulted about job reclassifications since a letter from an employee’s attorney created a reasonable anticipation of legal action under N.D.C.C. § 44-04-19.1(4). Edinger v. Governing Auth. of the Stutsman County Corr. Ctr. & Law Enforcement Ctr., 2005 ND 79, 695 N.W.2d 447, 2005 N.D. LEXIS 88 (N.D. 2005).

Admission to School.

Where it appears that a minor child can be admitted to the eighth grade of a school of a special school district without injuring or overcrowding said school, mandamus will lie to procure her admission. Kessler v. Board of Educ., 87 N.W.2d 743 (N.D. 1958), decided prior to the 1961 repeal and reenactment of Chapter 15-29 of the N.D.C.C.

Appellate Review.

Since issuance of either mandamus on prohibition is discretionary, the denial of a writ will not be overturned on appeal absent an abuse of discretion. Old Broadway Corp. v. Backes, 450 N.W.2d 734, 1990 N.D. LEXIS 5 (N.D. 1990).

Attorney General.

Where the application for a writ of mandamus concerns the state or a large group of persons therein, the application should be made by the attorney general in the name of the state. State ex rel. Dakota Hail Ass’n v. Carey, 2 N.D. 36, 49 N.W. 164 (1891), explained, Dean v. Dimmick, 18 N.D. 397, 122 N.W. 245 (1908), distinguished, Chandler v. Starling, 19 N.D. 144, 121 N.W. 198 (1909), decided prior to the adoption of former § 25, of art. 2, of the North Dakota Constitution (repealed by art. amend. 105, approved November 7, 1978); distinguished, Chandler v. Starling, 19 N.D. 144, 121 N.W. 198 (N.D. 1909).

Burden of Proof.

A petitioner for a writ of mandamus must show a clear legal right to performance of the act sought to be compelled and the denial of a writ will not be overturned unless the trial court abused its discretion. Fargo Beverage Co. v. Fargo, 459 N.W.2d 770, 1990 N.D. LEXIS 156 (N.D. 1990).

Clear Legal Right.

Those seeking mandamus must show a clear legal right to performance of the act to be compelled. Reed v. Hillsboro Pub. Sch. Dist. No. 9, 477 N.W.2d 237, 1991 N.D. LEXIS 191 (N.D. 1991).

Landowner had a clear legal right to seek a writ of mandamus to compel township to install a culvert under a township road, and the lack of evidence at trial showing that the culvert would comply with scientific highway construction and engineering methods did not preclude the court from finding that the township had a clear legal duty to act. Kadlec v. Greendale Twp. Bd. of Twp. Supervisors, 1998 ND 165, 583 N.W.2d 817, 1998 N.D. LEXIS 183 (N.D. 1998), limited, Pembina County Water Res. Bd. v. Cavalier County Water Res. Bd., 2010 ND 148, 787 N.W.2d 295, 2010 N.D. LEXIS 152 (N.D. 2010).

Court properly dismissed petitioners’ request for a writ of mandamus directing it to order the Insurance Commissioner for the State of North Dakota to require enforcement of its order to an insurer because the order did not mandate that the insurer adopt the Commissioner’s recommendations, but only required that the recommendations be “reviewed” by the insurer’s board of directors. Petitioners did not show a clear legal right to performance of the act sought to be compelled by the writ. Ward County Farm Bureau v. Poolman, 2006 ND 42, 710 N.W.2d 423, 2006 N.D. LEXIS 49 (N.D. 2006).

Petitioner for a writ of mandamus must first demonstrate a clear legal right to performance of the particular act sought to be compelled by the writ. Ward County Farm Bureau v. Poolman, 2006 ND 42, 710 N.W.2d 423, 2006 N.D. LEXIS 49 (N.D. 2006).

Control of Inferior Courts.

The supreme court has superintending control over inferior courts and may issue a writ of mandamus for such purpose where there is no adequate remedy in law. State ex rel. Red River Brick Corp. v. District Court, 24 N.D. 28, 138 N.W. 988, 1912 N.D. LEXIS 13 (N.D. 1912).

Where an inferior court erroneously decides a jurisdictional question, or one preliminary to the main controversy submitted to it, adversely to its jurisdiction, and refuses to proceed further, the supreme court, by a writ of mandamus, may compel the inferior court to perform its duties. State ex rel. Heffron v. District Court, 26 N.D. 32, 143 N.W. 143, 1913 N.D. LEXIS 38 (N.D. 1913).

An inferior tribunal cannot be compelled to decide a question of fact in a particular way, though it may be compelled to take action and make some determination. Mogaard v. Garrison, 47 N.D. 468, 182 N.W. 758, 1921 N.D. LEXIS 124 (N.D. 1921).

The Supreme Court does have the authority to issue writs of mandamus to inferior tribunals to compel performance of duty and the right to exercise supervisory control over recalcitrant judges. State ex rel. Rayl v. Hettinger County, 467 N.W.2d 98, 1991 N.D. LEXIS 53 (N.D. 1991).

County Officials.

A county official may compel the board of county commissioners to provide an office by mandamus. Cleary v. Eddy County, 2 N.D. 397, 51 N.W. 586, 1892 N.D. LEXIS 20 (N.D. 1892).

Mandamus may be used to compel county commissioners to act where they have refused to act, but it may not be used to review the legality of a bid on the basis of which the commissioners have acted in awarding a contract. Bismarck Tribune Co. v. Wolf, 64 N.D. 656, 255 N.W. 569, 1934 N.D. LEXIS 248 (N.D. 1934).

County auditor may be compelled by mandamus to calculate the rate percent of tax levies and extend tax charges on tax lists. State ex rel. Strutz v. Huber, 69 N.D. 788, 291 N.W. 126 (1939).

Writ of mandamus was unavailable to an applicant who could have taken an appeal to the district court from a board of county commissioners’ decision to deny applicant a liquor license. Smith v. Burleigh County Bd. of Comm'rs, 1998 ND 105, 578 N.W.2d 533, 1998 N.D. LEXIS 106 (N.D. 1998).

County Treasurer.

Mandamus cannot be invoked to compel county treasurer to pay to county commissioners funds derived from sale of courthouse bonds which he failed to pay over. TERRITORY ex rel. COUNTY COMM'RS v. CAVANAUGH, 19 N.W. 413, 3 Dakota 325, 1884 Dakota LEXIS 4 (Dakota 1884).

Mandamus is the proper remedy against a former county treasurer and legal depositories to compel the payment of public funds placed upon time deposit. State ex rel. Kopriva v. Larson, 48 N.D. 1144, 189 N.W. 626, 1922 N.D. LEXIS 155 (N.D. 1922).

County treasurer could be compelled by mandamus to accept payment of general land taxes although hail indemnity taxes were outstanding. Federal Land Bank v. Johnson, 67 N.D. 534, 274 N.W. 668, 1937 N.D. LEXIS 110 (N.D. 1937).

Mandamus was proper to compel county treasurer to pay into the state treasury certain taxes collected for the state and withheld by him. State ex rel. Strutz v. Nelson, 72 N.D. 402, 7 N.W.2d 735, 1943 N.D. LEXIS 77 (N.D. 1943).

Discretion of Court.

A trial court’s denial of a writ of mandamus will not be overturned on appeal unless the trial court has abused its discretion. McCallum v. City Comm'rs of Bismarck, 393 N.W.2d 263, 1986 N.D. LEXIS 407 (N.D. 1986).

Issuance of a writ of mandamus is left to the sound discretion of the trial court, and a denial of the writ will not be overturned on appeal unless the court has abused its discretion. North Dakota Council of Sch. Adm'rs v. Sinner, 458 N.W.2d 280, 1990 N.D. LEXIS 132 (N.D. 1990).

Discretion of State Officers.

A petition for a writ of mandamus will be granted only if the petitioner has a clear and legal right to the performance of the act sought to be compelled, and mandamus does not lie to compel a discretionary act. Keidel v. Mehrer, 464 N.W.2d 815, 1991 N.D. LEXIS 5 (N.D. 1991).

Dismissal of Case.

Where trial court dismissed, without prejudice the case against the criminal defendant and, on the same day, certified a question to the supreme court, the supreme court refused to answer the question because, due to the dismissal, there was no existing case which might be resolved by an answer to the question. State v. Vogel, 343 N.W.2d 773, 1984 N.D. LEXIS 238 (N.D. 1984).

Due Process.

District court properly dismissed a public employee’s petition for a writ of mandamus seeking to compel a city to reinstate him after his termination because his due process rights were not violated in either the pre-termination or post-termination proceedings where he was represented by counsel during both hearings, admitted that he disobeyed a direct order of a supervisor by refusing to perform requested work, that he pushed the supervisor “pretty hard,” and the supervisor fell against a wall, was offered several opportunities to present a defense and to present evidence, was allowed to present witnesses to testify, to question those witnesses, and to submit documentary evidence. Cockfield v. City of Fargo, 2019 ND 77, 924 N.W.2d 403, 2019 N.D. LEXIS 74 (N.D. 2019).

Elections.

District court properly denied a losing candidate's petition for a writ of mandamus because the constitutional and statutory requirements that candidates for governor and lieutenant governor be elected on a joint ballot was met by both the Democratic-NPL and Republican party candidates, the candidate's petition was filed after the results of both the primary and general elections were determined, and he did not provide reasoned argument and authority supporting a violation of his constitutional rights outside of conclusory statements and citations to irrelevant authorities. Sorum v. Dalrymple, 2014 ND 233, 857 N.W.2d 96, 2014 N.D. LEXIS 239 (N.D. 2014).

Impossibility of Mandamus.

Where factual circumstances made mandamus impossible, since writ could not be issued in time to be effective, action was remanded to trial court for determination of compensatory damages to which applicant was entitled. Selland v. Fargo Pub. Sch. Dist., 285 N.W.2d 567, 1979 N.D. LEXIS 314 (N.D. 1979).

Inadequate Remedy at Law.
—In General.

A writ of mandamus may be issued when the petitioner has a clear legal right to the performance of the act and when there is not a plain, speedy, and adequate remedy in the ordinary course of law. Old Broadway Corp. v. Backes, 450 N.W.2d 734, 1990 N.D. LEXIS 5 (N.D. 1990).

An applicant for a writ of mandamus must demonstrate both a clear legal entitlement to the performance of the particular act sought to be compelled and no other plain, speedy and adequate remedy in the ordinary course of law. Christianson v. Bismarck, 476 N.W.2d 688, 1991 N.D. LEXIS 175 (N.D. 1991).

—Particular Cases.

Landowner who sought a writ of mandamus to compel township to install a culvert in township road adjacent to his property had no speedy adequate remedy at law because water board persisted in asserting that it alone had sole authority to install the culvert. Kadlec v. Greendale Twp. Bd. of Twp. Supervisors, 1998 ND 165, 583 N.W.2d 817, 1998 N.D. LEXIS 183 (N.D. 1998), limited, Pembina County Water Res. Bd. v. Cavalier County Water Res. Bd., 2010 ND 148, 787 N.W.2d 295, 2010 N.D. LEXIS 152 (N.D. 2010).

—Discretionary Acts.

Mandamus may be used to compel performance of a ministerial duty, but may not be used to compel performance of discretionary acts; an applicant for a writ of mandamus must demonstrate a clear legal right to the performance of an act and must have no other plain, speedy, and adequate remedy in the ordinary course of law. Tooley v. Alm, 515 N.W.2d 137, 1994 N.D. LEXIS 89 (N.D. 1994).

Injunctions.

Trial court incorrectly concluded that injunction was an inappropriate form of relief, since a writ of injunction under N.D.C.C. ch. 32-06 is the correlative of the writ of mandamus under this chapter and public officials can be compelled to comply with the law through mandamus, or mandatory injunction proceedings, the effect of the two procedures being essentially the same; therefore, a prison inmate’s right to compel prison authorities to provide him with free eyeglasses was dismissed prematurely where the performance of such an act could not be decided on the pleadings alone. Ennis v. Dasovick, 506 N.W.2d 386, 1993 N.D. LEXIS 168 (N.D. 1993).

License Revocation.

Under N.D.C.C. § 39-20-04, failure to make a timely request for hearing or to timely file an affidavit with the department results in an automatic revocation of the person’s driver’s privileges. Because a driver who fails to file a timely affidavit has no clear legal right to avoid revocation of driving privileges for refusing a chemical test, a trial court abuses its discretion in granting a writ of mandamus directing the department to substitute a 91-day suspension in lieu of the one-year revocation. Krabseth v. Moore, 1997 ND 224, 571 N.W.2d 146, 1997 N.D. LEXIS 280 (N.D. 1997).

License Suspension Hearing.

The highway commissioner has a clear legal duty to grant a hearing on license suspension for driving under the influence of alcohol under the provisions of this section and a writ of mandamus may be properly issued to compel such action in accordance with N.D.C.C. § 39-20-05, but the duty is contingent on the action taken by the driver; before the commissioner’s duty to order a hearing arises, the driver must have timely requested a hearing. Lund v. North Dakota State Highway Dep't, 403 N.W.2d 25, 1987 N.D. LEXIS 276 (N.D. 1987).

Municipal Corporations.

Mandamus cannot be invoked to compel a board of city commissioners to pay on the contract price for paving a balance retained pursuant to contract. S. Birch & Sons Constr. Co. v. Fargo, 39 N.D. 370, 167 N.W. 390, 1918 N.D. LEXIS 36 (N.D. 1918).

Mandamus will not lie against a municipal board or officer unless the relator’s legal right to performance of the particular act sought to be compelled is clear and complete. Midland Produce Co. v. Minot, 70 N.D. 256, 294 N.W. 192, 1940 N.D. LEXIS 168 (N.D. 1940).

Mandamus will not issue to compel a city to levy a tax to pay damages caused by the city through negligence without inquiry into and decision of the issue of negligence by the court in which the mandamus is sought. City of Mohall v. First Nat'l Bank, 105 F.2d 315, 1939 U.S. App. LEXIS 3318 (8th Cir. Mo.), cert. denied, 308 U.S. 587, 60 S. Ct. 110, 84 L. Ed. 491, 1939 U.S. LEXIS 421 (U.S. 1939).

Nature of Action.

A petition for a writ of mandamus seeks to compel performance of a ministerial duty which the law requires to be performed and is not an action for personal injuries. Tooley v. Alm, 515 N.W.2d 137, 1994 N.D. LEXIS 89 (N.D. 1994).

Noncompliance with Procedural Requirements.

Because the duty to provide a hearing does not arise until a hearing has been timely requested, the petitioner waived his right to a hearing by his failure to timely request one, and a writ of mandamus should not have been issued. Burley v. North Dakota DOT, 1999 ND 232, 603 N.W.2d 490, 1999 N.D. LEXIS 259 (N.D. 1999).

Nonrenewal of Teaching Contracts.

Teachers and principals have a clear legal right to compliance with the statutory procedure for nonrenewal of contracts, and mandamus is proper if those procedures have not been followed. Opdahl v. Zeeland Pub. Sch. Dist. No. 4, 512 N.W.2d 444, 1994 N.D. LEXIS 50 (N.D. 1994).

Parent and Child.

The father of a minor, in his custody, who is obligated to educate and support such child, may bring a mandamus proceeding to force a special school district to accept said child as an eighth grade pupil in its school. Kessler v. Board of Educ., 87 N.W.2d 743 (N.D. 1958), decided prior to the 1961 repeal and reenactment of Chapter 15-29 of the N.D.C.C.

Particular Cases.

Trial court did not err in refusing to issue a writ of mandamus requiring the restoration of allotted funds to the Department of Public Instruction for disbursement as foundation aid payments, as the director of the budget was not shown to have a clear legal duty to restore the funds. North Dakota Council of Sch. Adm'rs v. Sinner, 458 N.W.2d 280, 1990 N.D. LEXIS 132 (N.D. 1990).

The trial court did not abuse its discretion in denying the petition for writ of mandamus to compel state’s attorney to prosecute alleged criminal trespass as state’s attorney made inquiry into the allegation and gave the case full consideration in reaching a decision not to prosecute. The court has long recognized the necessity for the exercise of discretion by the state’s attorney in the charging process, and the exercise of his prosecutorial discretion after due inquiry cannot be controlled by mandamus. Keidel v. Mehrer, 464 N.W.2d 815, 1991 N.D. LEXIS 5 (N.D. 1991).

Property owner’s petition for writ of mandamus, compelling a township to install a bigger culvert to aid in drainage, was properly denied because, although better drainage could have been provided, the law did not require perfect drainage, and the court found that the rain event, which the owner claimed demonstrated the drainage problems and the failure to meet the stream crossing standards on his property, was a cataclysmic event, and in excess of a 100-year flood, not a 10-year event as contemplated by the stream crossing standards for a township road. Eichhorn v. Waldo Twp. Bd. of Supervisors, 2006 ND 214, 723 N.W.2d 112, 2006 N.D. LEXIS 207 (N.D. 2006).

Supreme Court of North Dakota had the power to adopt N.D. Admis. Prac. R. 13 and to exempt processes regarding admission to the bar from public disclosure; mandamus relief was denied to an unsuccessful bar applicant seeking bar records because the applicant failed to establish a clear legal right to the information. Lamb v. State Bd. of Law Examiners, 2010 ND 11, 777 N.W.2d 343, 2010 N.D. LEXIS 7 (N.D.), cert. denied, 560 U.S. 965, 130 S. Ct. 3412, 177 L. Ed. 2d 324, 2010 U.S. LEXIS 4876 (U.S. 2010).

North Dakota Supreme Court exercised its original jurisdiction in a case where a nonprofit corporation was seeking mandamus in an attempt to compel the North Dakota Secretary of State to approve a recall petition for a United States Senator because the State had a primary interest in the outcome, and the sovereign rights of its citizens were affected. RECALLND v. Jaeger, 2010 ND 250, 792 N.W.2d 511, 2010 N.D. LEXIS 244 (N.D. 2010).

Peremptory Writ.

The order of the judge granting a peremptory writ is not appealable until the case is decided. Territory ex rel. Eisenmann v. Shearer, 8 N.W. 135, 2 Dakota 332, 1880 Dakota LEXIS 6 (Dakota 1880).

Performance of Act.

A writ of mandamus may be issued by the Supreme Court or district courts of North Dakota “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.” Christianson v. Bismarck, 476 N.W.2d 688, 1991 N.D. LEXIS 175 (N.D. 1991).

Prerogative Writ.

The supreme court, in the exercise of its original jurisdiction, will issue a writ of mandamus only when applied for as a prerogative writ, and where the question is of a public nature and affects the sovereignty of the state, its franchises, or the liberties of the people. State v. Nelson County, 1 N.D. 88, 45 N.W. 33, 1890 N.D. LEXIS 12 (N.D. 1890).

Probate Judge.

Mandamus will not lie to review or reverse decisions of probate judge adverse to claimants, or to compel him to execute deeds to tracts of land occupied and claimed under town-site law, after he has rendered decisions upon such claims adverse to such claimants. Territory ex rel. Gramburg v. Nowlin, 20 N.W. 430, 3 Dakota 349, 1884 Dakota LEXIS 10 (Dakota 1884).

Right of Relator Clear.

A writ of mandamus will issue only if the right of the relator is clear. State ex rel. Diebold Safe & Lock Co. v. Getchell, 3 N.D. 243, 55 N.W. 585, 1893 N.D. LEXIS 18 (N.D. 1893).

In order to show entitlement to a writ of mandamus, it must be shown that there is clear legal right to that which is sought. Webster v. Bismarck Pub. Sch. Dist., 321 N.W.2d 98, 1982 N.D. LEXIS 292 (N.D. 1982).

A petition for a writ of mandamus will be granted only if the petitioner has a clear legal right to the performance of the particular act sought to be compelled by the writ. McCallum v. City Comm'rs of Bismarck, 393 N.W.2d 263, 1986 N.D. LEXIS 407 (N.D. 1986).

In order to show that he is entitled to a writ of mandamus from the courts, the plaintiff must show that he has a clear legal right to the relief which he is seeking. Lund v. North Dakota State Highway Dep't, 403 N.W.2d 25, 1987 N.D. LEXIS 276 (N.D. 1987).

The party seeking a writ of mandamus bears the burden of demonstrating that he has a clear legal right to the performance of the particular act sought to be compelled by the writ. The officer has a nondiscretionary duty to perform the act. North Dakota Council of Sch. Adm'rs v. Sinner, 458 N.W.2d 280, 1990 N.D. LEXIS 132 (N.D. 1990).

School Board.

Application for mandamus which set forth claim for relief and demand for judgment was heard without regard to whether applicant should have sought quo warranto instead of mandamus in his attempt to compel school board to certify his election to board. Stearns v. Twin Butte Pub. Sch. Dist., 185 N.W.2d 641, 1971 N.D. LEXIS 186 (N.D. 1971).

Schoolteachers’ Contracts.

Mandamus does not lie to compel a school board to comply with the terms of a teacher’s contract as the remedy at law is adequate. Mootz v. Belyea, 60 N.D. 741, 236 N.W. 358, 1931 N.D. LEXIS 227 (N.D. 1931).

Since there are no specific statutory provisions regarding termination or nonrenewal of employment contracts of teachers employed by private educational institutions, a writ of mandamus to compel reinstatement to one’s teaching position is unavailable to such teachers who assert that they have been wrongfully terminated or nonrenewed. Schauer v. Jamestown College, 323 N.W.2d 114, 1982 N.D. LEXIS 369 (N.D. 1982).

In cases where the continuing contract of a teacher, created by former N.D.C.C. § 15-47-27, was not legally terminated, a writ of mandamus would be available where factual circumstances permit. Feldhusen v. Beach Pub. Sch. Dist., 423 N.W.2d 155, 1988 N.D. LEXIS 121 (N.D. 1988).

In light of the contractual and nonstatutory nature of a dismissed tenured instructor’s employment relationship with a college, she was not entitled to a writ of mandamus to compel reinstatement of her teaching position. Peterson v. N.D. Univ. Sys., 2004 ND 82, 678 N.W.2d 163, 2004 N.D. LEXIS 176 (N.D. 2004).

Education association’s writ of mandamus was denied where it did not demonstrate a clear legal right to remove additional contract language regarding an identified teacher need, N.D.C.C. ch. 15-38.1, and there was no bad faith in the negotiations by the school district, N.D.C.C. § 15.1-16-13; the school district’s limited ability to contract separately was not contrary to N.D.C.C. ch. 15.1-16. Kenmare Educ. Ass'n v. Kenmare Pub. Sch. Dist. No. 28, 2006 ND 136, 717 N.W.2d 603, 2006 N.D. LEXIS 140 (N.D. 2006).

Under the plain language of Rule GBRB-R, the teachers were fulfilling the 1,500-minute weekly teaching contact time they bargained for, and the parties’ past course of dealing reflected a mutual understanding that the teachers were fulfilling their normal duties required under the rule; the district court did not err in rescinding its writ of mandamus, N.D.C.C. § 32-34-01. Kalvoda v. Bismarck Pub. Sch. Dist. #1, 2011 ND 32, 794 N.W.2d 454, 2011 N.D. LEXIS 13 (N.D. 2011).

It was no abuse of discretion to require a school district to offer a teacher’s association a contract for one year, under the district’s authority to unilaterally issue a last-offer contract on reaching an impasse, because limiting a this authority to a single school year then under negotiation was consistent with the purpose of letting a school district bring good-faith negotiations for an ensuing school year to an end to permit schools to operate. Dickinson Educ. Ass'n v. Dickinson Pub. Sch. Dist., 2014 ND 157, 849 N.W.2d 615, 2014 N.D. LEXIS 150 (N.D. 2014).

Settlement of Statement of Case.

The supreme court, by mandamus, may direct a district court to settle a statement of the case. Kaeppler v. Pollock, 8 N.D. 59, 76 N.W. 987, 1898 N.D. LEXIS 10 (N.D. 1898).

Special Proceedings.

Proceedings to secure a writ of mandamus are special proceedings. Lien v. Savings, Loan & Trust Co., 43 N.D. 260, 174 N.W. 621, 1919 N.D. LEXIS 23 (N.D. 1919).

State Officers.

The original jurisdiction of the supreme court may be invoked to compel the state auditor to issue warrants to pay the salaries and meet the expenses of the tax commission. State ex rel. Birdzell v. Jorgenson, 25 N.D. 539, 142 N.W. 450, 1913 N.D. LEXIS 131 (N.D. 1913); State ex rel. Wallace v. Kositzky, 44 N.D. 291, 175 N.W. 207, 1919 N.D. LEXIS 210 (N.D. 1919).

A writ of mandamus is issued to compel performance of a ministerial duty by a state officer and is inappropriate to compel action that is discretionary in nature. State ex rel. Peterson v. Olson, 307 N.W.2d 528, 1981 N.D. LEXIS 313 (N.D. 1981).

Petition for a writ of mandamus, which sought to direct the North Dakota Secretary of State to place petitioner’s name on a general election ballot for the unexpired four-year term of justice of the North Dakota Supreme Court was denied because there was not a vacancy on the ballot within the meaning of the statute; a vacancy did not exist on the no-party ballot because only one candidate ran for the position at the primary election, was nominated, and was listed on the general election ballot. Bolinske v. Jaeger, 2008 ND 180, 756 N.W.2d 336, 2008 N.D. LEXIS 181 (N.D. 2008).

State’s Attorney.

Where state’s attorney made an inquiry into the matter and decided not to prosecute, alleged victim was not entitled to a writ of mandamus to compel the state’s attorney to prosecute. Hennebry v. Hoy, 343 N.W.2d 87, 1983 N.D. LEXIS 437 (N.D. 1983).

Title to Office.

The prevailing rule of law is that title to office will not be tried by mandamus. State ex rel. Butler v. Callahan, 4 N.D. 481, 61 N.W. 1025, 1895 N.D. LEXIS 46 (N.D. 1895).

The original jurisdiction of the supreme court may be invoked to test the right to the possession of the office of superintendent of public instruction. State ex rel. Langer v. McDonald, 41 N.D. 389, 170 N.W. 873, 1919 N.D. LEXIS 76 (N.D. 1919).

Venue.

The general venue statutes, N.D.C.C. ch. 28-04, apply when a motion for change of venue is made in a writ of mandamus proceeding. Dorgan v. Mercil, 269 N.W.2d 99, 1978 N.D. LEXIS 154 (N.D. 1978).

Workers Compensation.

An injured employee, moving for rehearing of claim, was entitled to a writ of mandamus ordering the bureau to allow an inspection of such files and records as pertained to his claim. Wallace v. North Dakota Workmen's Compensation Bureau, 69 N.D. 165, 284 N.W. 420, 1939 N.D. LEXIS 138 (N.D. 1939).

Collateral References.

Mandamus 1-140.

52 Am. Jur. 2d, Mandamus, §§ 7 et seq.

Requiring successor judge to journalize finding or decision of predecessor, 4 A.L.R.2d 584.

Social club or similar society, relief in mandamus for expulsion from, 20 A.L.R.2d 344, 393.

Church or religious society, relief in mandamus for suspension or expulsion from a, 20 A.L.R.2d 421.

Professional association, relief in mandamus for expulsion from, 20 A.L.R.2d 531.

Stock transfer, remedy for refusal of corporation or its agents to register or effectuate, 22 A.L.R.2d 12.

Bail: mandamus to compel judge or other officer to grant accused bail or to accept proffered sureties, 23 A.L.R.2d 803.

Zoning regulations, mandamus to compel municipal officials to enforce, 35 A.L.R.2d 1135, 1136.

Jury trial, remedy by appeal or writ of error as affecting mandamus to enforce right to, 41 A.L.R.2d 780.

Recusal of judge: other remedy as affecting mandamus to compel assertedly disqualified judge to recuse self or to certify his disqualification, 45 A.L.R.2d 937.

Venue of mandamus proceeding against public officer, 48 A.L.R.2d 423, 447.

Stockholders’ meetings, mandamus to compel holding of, 48 A.L.R.2d 615.

Arrest warrant: private person’s right to institute mandamus to compel a magistrate or other appropriate official to issue a warrant, or the like, for an arrest, 49 A.L.R.2d 1285.

Veterans: mandamus to enforce rights of noncivil service public employee, with respect to discharge, under state veterans’ tenure statute, 58 A.L.R.2d 960, 1005.

Master or auditor, availability of mandamus to review order of reference to, 76 A.L.R.2d 1120.

Coroner’s inquest, remedy to review verdict at, 78 A.L.R.2d 1218.

Professional association, compelling admission to membership in, 89 A.L.R.2d 964, 967.

Eminent domain, compelling ascertainment of compensation for property taken or for injuries inflicted under power of, 91 A.L.R.2d 991.

Discovery proceedings, mandamus to compel, 95 A.L.R.2d 1229.

Disciplinary investigation or action against physician or attorney, mandamus to compel, 33 A.L.R.3d 1429.

Mandamus as remedy to compel disqualification of federal judge, 56 A.L.R. Fed. 494.

Law Reviews.

Judicial Review of Decisions of the Workmen’s Compensation Bureau of North Dakota, 3 Dak. L. Rev. 16 (1930).

32-34-01.1. Supreme court sua sponte may issue writ to judges of inferior courts.

The supreme court sua sponte may issue a writ of mandamus to any district court judge or other inferior court judge to compel such judge to act upon any judicial matters which have been properly placed before such judge’s court. Should such judge fail to act as directed by the writ, such judge shall be liable for the punishment provided by this chapter.

Source:

S.L. 1967, ch. 270, § 1.

32-34-02. When issued.

The writ must be issued in all cases when there is not a plain, speedy, and adequate remedy in the ordinary course of law. It must be issued upon affidavit upon the application of the party beneficially interested except those writs issued sua sponte by the supreme court.

Source:

C. Civ. P. 1877, § 696; R.C. 1895, § 6111; R.C. 1899, § 6111; R.C. 1905, § 7823; C.L. 1913, § 8458; R.C. 1943, § 32-3402; S.L. 1967, ch. 270, § 2.

Derivation:

Harston’s (Cal.) Practice, 1086.

Cross-References.

Appeals to supreme court, see N.D.C.C. ch. 28-27.

Notes to Decisions

Adequacy of Remedies.

A writ of mandamus may be issued when the petitioner has a clear legal right to the performance of the act and when there is not a plain, speedy, and adequate remedy in the ordinary course of law. Old Broadway Corp. v. Backes, 450 N.W.2d 734, 1990 N.D. LEXIS 5 (N.D. 1990).

Appeals.

Mandamus is not available to compel a judge to determine a matter where an appeal lies from his decision. State ex rel. AG v. District Court of Fourth Judicial Dist., 13 N.D. 211, 100 N.W. 248, 1904 N.D. LEXIS 30 (N.D. 1904).

Party did not have a right to a writ of mandamus directing the issuance of a permit to erect advertising signs along interstate highways where such party had the right to appeal to the district court the denial of the permit. Newman Signs v. Hjelle, 300 N.W.2d 860, 1980 N.D. LEXIS 343 (N.D. 1980).

Application of Statute.

The statute providing that a writ of mandamus may be issued in all cases when there is no plain, speedy, and adequate remedy in the ordinary course of law is applicable to all cases. Wallace v. North Dakota Workmen's Compensation Bureau, 69 N.D. 165, 284 N.W. 420, 1939 N.D. LEXIS 138 (N.D. 1939).

Clear Legal Right.

Petitioner must have a clear legal right to the relief sought before mandamus may properly be issued; but this does not preclude the court from which the mandamus is sought from construing or interpreting the statute to determine whether a clear right exists. Fargo Educ. Ass'n v. Paulsen, 239 N.W.2d 842, 1976 N.D. LEXIS 209 (N.D. 1976).

In order to show entitlement to a writ of mandamus, it must be shown that there is clear legal right to that which is sought. Webster v. Bismarck Pub. Sch. Dist., 321 N.W.2d 98, 1982 N.D. LEXIS 292 (N.D. 1982).

Unsuccessful candidate was entitled to a remit mandamus requiring the secretary of state to conduct an automatic recount under N.D.C.C. § 16.1-16-01(1)(a) where the statute’s plain language required a comparison of the highest votes cast for a candidate for the office sought without regard to the candidate’s party. Riemers v. Jaeger, 2018 ND 192, 916 N.W.2d 113, 2018 N.D. LEXIS 200 (N.D. 2018).

Contempt Proceedings.

Mandamus does not lie to compel a district court to vacate its order dismissing contempt proceedings, and to punish the parties named for contempt, because there is an adequate remedy by appeal. State ex rel. Red River Brick Corp. v. District Court, 24 N.D. 28, 138 N.W. 988, 1912 N.D. LEXIS 13 (N.D. 1912).

Control of Inferior Tribunal.

An inferior tribunal cannot be compelled to decide a question of fact in a particular way, though it may be compelled to take action and make some determination. Mogaard v. Garrison, 47 N.D. 468, 182 N.W. 758, 1921 N.D. LEXIS 124 (N.D. 1921).

Discretion of Court.

Mandamus is not a writ of right but it is granted in the discretion of the court. Territory ex rel. Wallace v. Woodbury, 1 N.D. 85, 44 N.W. 1077, 1890 N.D. LEXIS 11 (N.D. 1890).

Mandamus is not available as a matter of right, but involves sound discretion of trial court; therefore supreme court will not overturn denial of writ absent showing of abuse of discretion. Fargo Educ. Ass'n v. Paulsen, 239 N.W.2d 842, 1976 N.D. LEXIS 209 (N.D. 1976).

Fees of County Officers.

County commissioners may be compelled to adjust fee accounts of officers retaining fees belonging to county. State ex rel. Braatelien v. Drakeley, 26 N.D. 87, 143 N.W. 768, 1913 N.D. LEXIS 48 (N.D. 1913).

Inadequate Remedy at Law.

An applicant for a writ of mandamus must demonstrate both a clear legal entitlement to the performance of the particular act sought to be compelled and no other plain, speedy and adequate remedy in the ordinary course of law. Christianson v. Bismarck, 476 N.W.2d 688, 1991 N.D. LEXIS 175 (N.D. 1991).

Legal Remedies Not Superseded.

Mandamus cannot be employed to supersede legal remedies, but is intended to furnish a remedy where no adequate remedy at law exists. Bismarck Tribune Co. v. Wolf, 64 N.D. 656, 255 N.W. 569, 1934 N.D. LEXIS 248 (N.D. 1934).

License Fees.

Where a board of county commissioners has fixed certain license fees under a wrong statute, mandamus will lie to compel fixing the fees under the right statute. Territory v. McPherson, 50 N.W. 351, 6 Dakota 27, 1888 Dakota LEXIS 51 (Dakota 1888).

Official Discretion.

Mandamus will not lie to control official discretion. Oliver v. Wilson, 8 N.D. 590, 80 N.W. 757, 1899 N.D. LEXIS 53 (N.D. 1899); State ex rel. Wiles v. Albright, 11 N.D. 22, 88 N.W. 729, 1901 N.D. LEXIS 90 (N.D. 1901).

Review Where Appeal Not Allowed.

That the decision of the state engineer is not appealable does not preclude the decision from being reviewed when there is no appeal allowed. Administrative determinations may be reviewed through special proceedings such as those provided in this section and N.D.C.C. §§ 32-33-01 and 32-35-02. Investment Rarities v. Bottineau County Water Resource Dist., 396 N.W.2d 746, 1986 N.D. LEXIS 461 (N.D. 1986).

Right of Relator Clear.

As a prerequisite to the issuance of a writ of mandamus, it must appear that the relator has a clear, legal right to the performance of a particular duty, and that the law affords no other plain, speedy, and adequate remedy. Territory ex rel. Graves v. Cole, 19 N.W. 418, 3 Dakota 301, 1884 Dakota LEXIS 7 (Dakota 1884); Strauss v. Costello, 29 N.D. 215, 150 N.W. 874, 1915 N.D. LEXIS 5 (N.D. 1915).

Mandamus will not lie against a municipal board or officer unless the relator’s legal right to performance of the particular act sought to be compelled is clear and complete. Midland Produce Co. v. Minot, 70 N.D. 256, 294 N.W. 192, 1940 N.D. LEXIS 168 (N.D. 1940).

Schoolteachers’ Contracts.

Mandamus does not lie to compel a school board to comply with the terms of a teacher’s contract as the remedy at law is adequate. Mootz v. Belyea, 60 N.D. 741, 236 N.W. 358, 1931 N.D. LEXIS 227 (N.D. 1931).

In cases where the continuing contract of a teacher, created by N.D.C.C. § 15-47-27, was not legally terminated, a writ of mandamus would be available where factual circumstances permit. Feldhusen v. Beach Pub. Sch. Dist., 423 N.W.2d 155, 1988 N.D. LEXIS 121 (N.D. 1988).

Settlement of Statement of Case.

While the supreme court, by mandamus, may not set aside or cancel a void order of the district court, it may direct the judge of such court to proceed, regardless of such order, to settle a statement of the case according to law. Kaeppler v. Pollock, 8 N.D. 59, 76 N.W. 987, 1898 N.D. LEXIS 10 (N.D. 1898).

Zoning.

Mandamus is not available to challenge the decisions of the board of zoning appeals where the zoning ordinance and statutes specifically provide for appeal to the district court. Leonard v. Medlang, 264 N.W.2d 481, 1978 N.D. LEXIS 227 (N.D. 1978).

Collateral References.

Mandamus 3-61/2, 21-23, 154, 155.

52 Am. Jur. 2d, Mandamus, §§ 19 et seq.

Remedy by appeal or writ of error as affecting mandamus to enforce right to jury trial, 41 A.L.R.2d 780.

32-34-03. Alternative or peremptory.

The writ may be either alternative or peremptory. The alternative writ must state generally the allegation against the party to whom it is directed and must command such party immediately upon the receipt of the writ, or at some other specified time, to do the act required to be performed or to show cause before the court at a specified time and place why the party has not done such act. The peremptory writ must be in a similar form except that the words requiring the party to show cause why the party has not obeyed the command must be omitted and a return day inserted.

Source:

C. Civ. P. 1877, § 697; R.C. 1895, § 6112; R.C. 1899, § 6112; R.C. 1905, § 7824; C.L. 1913, § 8459; R.C. 1943, § 32-3403.

Derivation:

Harston’s (Cal.) Practice, 1087.

Collateral References.

Mandamus 158-161, 179-184.

52 Am. Jur. 2d, Mandamus, §§ 455 et seq.

32-34-04. When each may issue.

When the application to the court is made without notice to the adverse party and the writ is allowed, the alternative writ must be issued first, but if the application is upon due notice and the writ is allowed, the peremptory writ may be issued in the first instance. The notice of the application, when given, must be at least ten days. The writ cannot be granted by default. The case must be heard by the court whether the adverse party appears or not.

Source:

C. Civ. P. 1877, § 698; R.C. 1895, § 6113; R.C. 1899, § 6113; R.C. 1905, § 7825; C.L. 1913, § 8460; R.C. 1943, § 32-3404.

Derivation:

Harston’s (Cal.) Practice, 1088.

Notes to Decisions

Notice.

A peremptory writ may not be awarded under this section without either due notice given or the issuance of any alternative writ or order. State ex rel. Kinzer v. Hall, 50 N.D. 693, 197 N.W. 769, 1924 N.D. LEXIS 22 (N.D. 1924).

32-34-05. Answer.

On the return of the alternative writ, or the day on which the application for the writ is noticed, the party on whom the writ or notice has been served may show cause by answer under oath made in the same manner as an answer to a complaint in a civil action.

Source:

C. Civ. P. 1877, § 699; R.C. 1895, § 6114; R.C. 1899, § 6114; R.C. 1905, § 7826; C.L. 1913, § 8461; R.C. 1943, § 32-3405.

Derivation:

Harston’s (Cal.) Practice, 1089.

Collateral References.

Mandamus 164-164(5).

52 Am. Jur. 2d, Mandamus, §§ 423-429.

32-34-06. Jury may assess damages.

If an answer is made which raises a question as to a matter of fact essential to the determination of the motion and affecting the substantial rights of the parties and upon the supposed truth of which allegation the application for the writ is based, the court in its discretion may order the question to be tried before a jury, and may postpone the argument until such trial can be had and the verdict certified to the court. The question to be tried must be stated distinctly in the order for trial, and the county must be designated in which the same shall be had. The order also may direct the jury to assess any damages which the applicant may have sustained in case the jury finds for the applicant.

Source:

C. Civ. P. 1877, § 700; R.C. 1895, § 6115; R.C. 1899, § 6115; R.C. 1905, § 7827; C.L. 1913, § 8462; R.C. 1943, § 32-3406.

Derivation:

Harston’s (Cal.) Practice, 1090.

Notes to Decisions

Right to Jury Trial.

Defendant was not entitled to a jury trial in an action to compel the filing of an income tax return where there were no issues of fact for a jury. Dorgan v. Kouba, 274 N.W.2d 167, 1978 N.D. LEXIS 184 (N.D. 1978).

Jury trial is not mandatory under the North Dakota Constitution in an action to compel the filing of a tax return. Dorgan v. Kouba, 274 N.W.2d 167, 1978 N.D. LEXIS 184 (N.D. 1978); Dorgan v. Miller, 297 N.W.2d 418, 1980 N.D. LEXIS 288 (N.D. 1980).

In order to establish that there has been a denial of a right to a jury trial under this section, it must first be established that there exists a genuine issue of fact and then that trial court abused its discretion in refusing a jury trial request. Dorgan v. Miller, 297 N.W.2d 418, 1980 N.D. LEXIS 288 (N.D. 1980).

Venue.

This section does not establish venue for the initial application for a writ of mandamus nor does it contain any provision which would control where the issue of venue is raised; in such cases the general venue statutes, N.D.C.C. ch. 28-04, apply; this section has limited application and comes into operation only if an issue of fact has been raised in a mandamus proceeding which needs to be determined. Dorgan v. Mercil, 269 N.W.2d 99, 1978 N.D. LEXIS 154 (N.D. 1978).

Collateral References.

Mandamus 173, 174, 176, 177.

52 Am. Jur. 2d, Mandamus, §§ 470-474.

Allowance of damages to successful plaintiff or relator in mandamus, 73 A.L.R.2d 903.

Allowance of attorneys’ fees in mandamus proceedings, 34 A.L.R.4th 457.

32-34-07. Latitude of proof.

On the trial the applicant is not precluded by the answer from any valid objection to its sufficiency and may countervail it by proof either in direct denial or by way of avoidance.

Source:

C. Civ. P. 1877, § 701; R.C. 1895, § 6116; R.C. 1899, § 6116; R.C. 1905, § 7828; C.L. 1913, § 8463; R.C. 1943, § 32-3407.

Derivation:

Harston’s (Cal.) Practice, 1091.

32-34-08. New trial — Where motion made.

A motion for new trial must be made in the court in which the issue of fact is tried.

Source:

C. Civ. P. 1877, § 702; R.C. 1895, § 6117; R.C. 1899, § 6117; R.C. 1905, § 7829; C.L. 1913, § 8464; R.C. 1943, § 32-3408.

Derivation:

Harston’s (Cal.) Practice, 1092.

Collateral References.

Mandamus 175.

55 C.J.S. Mandamus, § 412.

32-34-09. Transmission of verdict.

If no notice of a motion for a new trial is given, or, if given, the motion is denied, the clerk within five days after rendition of the verdict or denial of the motion must transmit to the court in which the application for the writ is pending a certified copy of the verdict attached to the order of trial after which either party may bring on the argument of the application upon reasonable notice to the adverse party.

Source:

C. Civ. P. 1877, § 703; R.C. 1895, § 6118; R.C. 1899, § 6118; R.C. 1905, § 7830; C.L. 1913, § 8465; R.C. 1943, § 32-3409.

Derivation:

Harston’s (Cal.) Practice, 1093.

32-34-10. Hearing.

If no answer is made, the case must be heard on the papers of the applicant. If the answer raises only questions of law or puts in issue only immaterial statements not affecting the substantial rights of the parties, the court must proceed to hear or fix a day for hearing the argument of the case.

Source:

C. Civ. P. 1877, § 704; R.C. 1895, § 6119; R.C. 1899, § 6119; R.C. 1905, § 7831; C.L. 1913, § 8466; R.C. 1943, § 32-3410.

Derivation:

Harston’s (Cal.) Practice, 1094.

Collateral References.

Mandamus 173, 174.

52 Am. Jur. 2d, Mandamus, §§ 438 et seq.

Notes to Decisions

Hearing.

District court did not deny a resident the right to a hearing after issuance of the preliminary writ of prohibition because the resident had two non-evidentiary hearings during the proceeding. Knapp v. Comm'r of Minn. Dep't of Revenue, 2018 ND 231, 918 N.W.2d 387, 2018 N.D. LEXIS 239 (N.D. 2018).

32-34-11. Damages — Peremptory writ.

If judgment is given for the applicant, the applicant may recover the damages which the applicant has sustained as found by the jury, or as may be determined by the court, or referee upon a reference to be ordered, together with costs, and for such damages and costs execution may issue, and a peremptory mandamus also must be awarded.

Source:

C. Civ. P. 1877, § 705; R.C. 1895, § 6120; R.C. 1899, § 6120; R.C. 1905, § 7832; C.L. 1913, § 8467; R.C. 1943, § 32-3411.

Derivation:

Harston’s (Cal.) Practice, 1095.

Notes to Decisions

Costs.
—Denied.

Where request for a writ of prohibition was denied, petitioners were not entitled to recover attorney’s fees and costs. Smith v. Rustad, 524 N.W.2d 91, 1994 N.D. LEXIS 239 (N.D. 1994).

Landowner not entitled to attorney fees and costs, and the law of the case doctrine did not apply where the trial court, when issuing a writ of mandamus, did not decide the legal question of the landowners’ entitlement to attorney fees and costs in a possible future action challenging the County’s compliance with the writ. Fandrich v. Wells County Bd. of County Comm'rs, 2000 ND 181, 618 N.W.2d 166, 2000 N.D. LEXIS 205 (N.D. 2000).

Findings of Fact.

A peremptory writ of mandamus cannot be issued until after the judgment has been entered upon findings of fact and an order for judgment authorizing the peremptory writ. State ex rel. Burke County Farmers' Press v. Magedanz, 64 N.D. 55, 250 N.W. 336, 1933 N.D. LEXIS 245, 1933 N.D. LEXIS 246 (N.D. 1933).

Intermediate Orders.

Intermediate orders in a mandamus proceeding are not appealable. Warren v. Slaybaugh, 58 N.D. 904, 228 N.W. 416, 1929 N.D. LEXIS 295 (N.D. 1929).

Collateral References.

Mandamus 177.

52 Am. Jur. 2d, Mandamus, § 463.

Allowance of damages to successful plaintiff or relator in mandamus, 73 A.L.R.2d 903.

Allowance of attorneys’ fees in mandamus proceedings, 34 A.L.R.4th 457.

32-34-12. How writ served.

The writ must be served in the same manner as a summons in a civil action except when otherwise expressly directed by order of the court. Service upon a majority of the members of any board or body is service upon the board or body whether at the time of the service the board was in session or not.

Source:

C. Civ. P. 1877, § 706; R.C. 1895, § 6121; R.C. 1899, § 6121; R.C. 1905, § 7833; C.L. 1913, § 8468; R.C. 1943, § 32-3412.

Derivation:

Harston’s (Cal.) Practice, 1096.

Cross-References.

Service of civil summons, see N.D.R.Civ.P. 4(c).

Notes to Decisions

Private Individual.

Service may be made by any person not a party to the proceeding where court does not require service to be made by an officer. State ex rel. Fargo Loan Agency v. Conrath, 53 N.D. 460, 206 N.W. 777, 1925 N.D. LEXIS 103 (N.D. 1925).

Collateral References.

Mandamus 183.

52 Am. Jur. 2d, Mandamus, § 460.

32-34-13. Disobedience — Punishment.

When a peremptory mandamus has been issued and directed to any inferior tribunal, corporation, board, or person, if it appears to the court that any member of such tribunal, corporation, board, or such person upon whom the writ has been served personally has refused or neglected to obey the same without just excuse, the court upon motion may impose a fine not exceeding one thousand dollars. In case of persistence in a refusal of obedience, the court may order the party to be imprisoned until the writ is obeyed and may make any orders necessary and proper for the complete enforcement of the writ.

Source:

C. Civ. P. 1877, § 707; R.C. 1895, § 6122; R.C. 1899, § 6122; R.C. 1905, § 7834; C.L. 1913, § 8469; R.C. 1943, § 32-3413.

Derivation:

Harston’s (Cal.) Practice, 1097.

CHAPTER 32-35 Writ of Prohibition

32-35-01. Definition of writ of prohibition.

The writ of prohibition is the counterpart of the writ of mandamus. It arrests the proceedings of any tribunal, corporation, board, or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person.

Source:

C. Civ. P. 1877, § 708; R.C. 1895, § 6123; R.C. 1899, § 6123; R.C. 1905, § 7835; C.L. 1913, § 8470; R.C. 1943, § 32-3501.

Derivation:

Harston’s (Cal.) Practice, 1102.

Notes to Decisions

Administrative Hearing Officers.

When there is no other adequate remedy and a threat of irreparable harm, a writ of prohibition may be sought to prohibit a hearing officer from enforcing an administrative discovery decision. Medical Arts Clinic, P.C. v. Franciscan Initiatives, 531 N.W.2d 289, 1995 N.D. LEXIS 86 (N.D. 1995).

Appellate Review.

Since issuance of either mandamus or prohibition is discretionary, the denial of a writ will not be overturned on appeal absent an abuse of discretion. Old Broadway Corp. v. Backes, 450 N.W.2d 734, 1990 N.D. LEXIS 5 (N.D. 1990).

Availability of Writ.

The writ of prohibition is not a writ of right, but is available only when the inferior court, body, or tribunal is about to act without jurisdiction or in excess of jurisdiction. Zinn v. District Court, 17 N.D. 128, 114 N.W. 475, 1908 N.D. LEXIS 3 (N.D. 1908).

The writ of prohibition issues only when the proceedings of a tribunal, corporation, board, or officer are without jurisdiction or in excess thereof. State ex rel. McDonald v. Hanley, 43 N.D. 388, 175 N.W. 569, 1919 N.D. LEXIS 51 (N.D. 1919).

A writ of prohibition is not a process for the correction of errors, and it lies only where there is no jurisdiction in the inferior court or body, or when such court or body is about to act in excess of jurisdiction. Lynch v. District Court, 48 N.D. 431, 185 N.W. 303, 1921 N.D. LEXIS 61 (N.D. 1921).

Prohibition lies against a judge acting without jurisdiction, even though the court itself has jurisdiction of the defendant and of the charge against him. State ex rel. Lucia v. Monson, 55 N.D. 892, 215 N.W. 680, 1927 N.D. LEXIS 180 (N.D. 1927).

Writ of prohibition is to be used sparingly and only in cases where there is an inadequate remedy by appeal or other equitable considerations require its use. Davis v. O'Keefe, 283 N.W.2d 73, 1979 N.D. LEXIS 276 (N.D. 1979).

Writ of prohibition is not a writ of right, but is available only when an inferior court, body, or tribunal is about to act without or in excess of jurisdiction. Schneider v. Ewing, 310 N.W.2d 581, 1981 N.D. LEXIS 374 (N.D. 1981).

Definition.

A writ of prohibition is an extraordinary remedy to prevent an inferior body or tribunal from acting without or in excess of jurisdiction when there is not a plain, speedy, and adequate remedy in the ordinary course of law. Old Broadway Corp. v. Backes, 450 N.W.2d 734, 1990 N.D. LEXIS 5 (N.D. 1990).

Proper Remedy.

Where a district court enjoins proceedings by a board of drainage commissioners acting regularly and within its exclusive jurisdiction, a writ of prohibition from the supreme court is a proper remedy to be invoked against further proceedings by the district court. State ex rel. Dorgan v. Fisk, 15 N.D. 219, 107 N.W. 191, 1906 N.D. LEXIS 33 (N.D. 1906).

The writ of prohibition is the proper remedy where the tax commission is acting outside its jurisdiction. State ex rel. Linde v. Packard, 32 N.D. 301, 155 N.W. 666, 1915 N.D. LEXIS 68 (N.D. 1915).

A writ of prohibition under the general and supervisory jurisdiction of the supreme court is the appropriate means that it may employ to arrest and control proceedings of district court in the issue of its injunctional orders. State ex rel. Shafer v. Lowe, 54 N.D. 637, 210 N.W. 501, 1926 N.D. LEXIS 72 (N.D. 1926), overruled in part, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632, 1994 N.D. LEXIS 202 (N.D. 1994).

Writ of prohibition was not a proper remedy where the district court, by issuing an ex parte order, had completed the act for which petitioner had sought the writ; however, fact that writ of prohibition was not a proper remedy did not prevent Supreme Court from granting appropriate relief. Beck v. Smith, 296 N.W.2d 886, 1980 N.D. LEXIS 280 (N.D. 1980).

Public Service Commission Order.

Prohibition was not proper remedy to test power of public service commission to issue temporary certificate of convenience and necessity without hearing where certificate had already been issued; prohibition is not appropriate writ to revoke order already made since proper use is to prohibit doing of something, not undoing of something already done. Mor-Gran-Sou Elec. Coop. v. Montana-Dakota Utils. Co., 160 N.W.2d 521, 1968 N.D. LEXIS 72 (N.D. 1968).

Collateral References.

Prohibition 1, 2.

63A Am. Jur. 2d, Prohibition, §§ 1-4.

72A C.J.S. Prohibition, §§ 1-3, 9-11.

32-35-02. By whom and when issued.

The writ of prohibition may be issued by the supreme and district courts to an inferior tribunal, or to a corporation, board, or person in any case, if there is not a plain, speedy, and adequate remedy in the ordinary course of law. It is issued upon affidavit on the application of the person beneficially interested.

Source:

C. Civ. P. 1877, § 709; R.C. 1895, § 6124; R.C. 1899, § 6124; R.C. 1905, § 7836; C.L. 1913, § 8471; R.C. 1943, § 32-3502.

Derivation:

Harston’s (Cal.) Practice, 1103.

Notes to Decisions

Administrative Hearing Officers.

When there is no other adequate remedy and a threat of irreparable harm, a writ of prohibition may be sought to prohibit a hearing officer from enforcing an administrative discovery decision. Medical Arts Clinic, P.C. v. Franciscan Initiatives, 531 N.W.2d 289, 1995 N.D. LEXIS 86 (N.D. 1995).

Appeals.

The writ of prohibition will not lie if there is a remedy by appeal. SELZER v. BAGLEY, 19 N.D. 697, 124 N.W. 426, 1910 N.D. LEXIS 6 (N.D. 1910).

Attorney General’s Opinion Disputed.

Where attorney general had already issued his opinion, nothing further appeared to be threatened by him, and issuance of his opinion appeared to have been within scope of his jurisdiction, writ of prohibition was unavailable; however, supreme court would proceed pursuant to declaratory judgment procedure. State ex rel. Link v. Olson, 286 N.W.2d 262, 1979 N.D. LEXIS 319 (N.D. 1979).

Challenge to Constitutionality of Statute.

Petition for writ of prohibition, brought in district court seeking to prevent further proceedings in criminal prosecution in justice court, was a proper method for raising the question of the constitutionality of the statute upon which the prosecution was based. State v. Hanson, 252 N.W.2d 872, 1977 N.D. LEXIS 264 (N.D. 1977).

Contempt Proceedings.

County sheriff was granted a writ of prohibition to enjoin county court of increased jurisdiction from proceeding with contempt proceeding against him for failure to comply with court order where order was void ab initio due to court’s lack of jurisdiction to issue it, and judge’s interest in the case would preclude the sheriff from receiving an objective determination of contempt. Schneider v. Ewing, 310 N.W.2d 581, 1981 N.D. LEXIS 374 (N.D. 1981).

Criminal Proceedings.

Petition for writ of prohibition was denied where it attempted to stop all future criminal proceedings by the trial court because of grand jury irregularities. Zinn v. District Court, 17 N.D. 128, 114 N.W. 475, 1908 N.D. LEXIS 3 (N.D. 1908).

Discretion of Court.

The decision whether to grant a writ of prohibition is discretionary with the court to which the application is made. Schneider v. Seaworth, 376 N.W.2d 49, 1985 N.D. LEXIS 461 (N.D. 1985).

Extraordinary Remedy.

The writ of prohibition is to be employed sparingly and only in cases where there is no adequate remedy by appeal or otherwise, or where other equitable principles justify the use of the extraordinary writ of prohibition. Schneider v. Seaworth, 376 N.W.2d 49, 1985 N.D. LEXIS 461 (N.D. 1985).

The writ of prohibition remains an extraordinary remedy whose use, especially in regard to criminal prosecutions, is not always favored. Schneider v. Seaworth, 376 N.W.2d 49, 1985 N.D. LEXIS 461 (N.D. 1985).

A writ of prohibition is an extraordinary remedy to prevent an inferior tribunal, board, or body from acting beyond its jurisdiction when there is not a plain, speedy and adequate remedy in the ordinary course of law. Walker v. Schneider, 477 N.W.2d 167, 1991 N.D. LEXIS 187 (N.D. 1991).

Jurisdiction.

The writ of prohibition is available only in cases where jurisdiction was never acquired or, if acquired, has been exceeded. State ex rel. Dorgan v. Fisk, 15 N.D. 219, 107 N.W. 191, 1906 N.D. LEXIS 33 (N.D. 1906); Zinn v. District Court, 17 N.D. 128, 114 N.W. 475, 1908 N.D. LEXIS 3 (N.D. 1908).

The writ of prohibition issues only when the proceedings of a tribunal, corporation, board, or officer are without jurisdiction or in excess thereof. State ex rel. McDonald v. Hanley, 43 N.D. 388, 175 N.W. 569, 1919 N.D. LEXIS 51 (N.D. 1919).

A writ of prohibition is not a process for the correction of errors, and it lies only where there is no jurisdiction in the inferior court or body, or when such court or body is about to act in excess of jurisdiction. Lynch v. District Court, 48 N.D. 431, 185 N.W. 303, 1921 N.D. LEXIS 61 (N.D. 1921).

Method of Attacking Constitutionality.

Application for a writ of prohibition is an appropriate method of attacking the constitutionality of a statute and can provide a convenient way of reaching the constitutional question without the expense and delay of a full trial. Schneider v. Seaworth, 376 N.W.2d 49, 1985 N.D. LEXIS 461 (N.D. 1985).

Person “Beneficially Interested”.

Taxpayer was a person “beneficially interested” in the subject of litigation, and was entitled to petition for a writ of prohibition in an action to bar the director of accounts and purchases from making unvouchered quarterly expense payments to certain elected officials as provided for in S.L. 1975, ch. 25, subd. 17. Walker v. Omdahl, 242 N.W.2d 649, 1976 N.D. LEXIS 227 (N.D. 1976).

Public Service Commission Order.

Petition in supreme court for an original writ of prohibition against the public service commission to prohibit the commission from carrying into effect a certain order claimed to affect substantial rights of the relators was denied where relators were private corporations and no right of the public was involved. State ex rel. Amerada Petro. Corp. v. North Dakota Pub. Serv. Comm'n, 79 N.W.2d 297 (N.D. 1956).

Prohibition was not proper remedy to test power of public service commission to issue temporary certificate of convenience and necessity without hearing where certificate had already been issued; prohibition is not appropriate writ to revoke order already made since proper use is to prohibit doing of something, not undoing of something already done. Mor-Gran-Sou Elec. Coop. v. Montana-Dakota Utils. Co., 160 N.W.2d 521, 1968 N.D. LEXIS 72 (N.D. 1968).

Review Where Appeal Not Allowed.

That the decision of the state engineer is not appealable does not preclude the decision from being reviewed when there is no appeal allowed. Administrative determinations may be reviewed through special proceedings such as those provided in this section and N.D.C.C. §§ 32-33-01 and 32-34-02. Investment Rarities v. Bottineau County Water Resource Dist., 396 N.W.2d 746, 1986 N.D. LEXIS 461 (N.D. 1986).

Scope of Review.

Before the supreme court will conclude that the lower court erred in refusing to issue a writ of prohibition, an appellant must affirmatively establish that there was an abuse of discretion, i.e., that the lower court acted in an arbitrary, unreasonable, or unconscionable manner. Schneider v. Seaworth, 376 N.W.2d 49, 1985 N.D. LEXIS 461 (N.D. 1985).

When Denied or Issued.

The denial of a writ of prohibition restraining enforcement of a statute or ordinance would be unreasonable where there is no adequate alternative and the statute or ordinance is flagrantly and patently violative of express constitutional prohibitions. But where nonfrivolous arguments can be made to support the constitutionality of the enactment, it could not be said that the lower court’s refusal to issue the writ was unreasonable. Schneider v. Seaworth, 376 N.W.2d 49, 1985 N.D. LEXIS 461 (N.D. 1985).

Collateral References.

Prohibition 1-16.

63A Am. Jur. 2d, Prohibition, §§ 8-75.

72A C.J.S. Prohibition, §§ 1-15, 17-42, 44.

Multiplicity of proceedings, prohibition to prevent, 94 A.L.R.2d 1048.

Jury trial, prohibition as remedy to enforce right to, 41 A.L.R.2d 780.

Depositions in criminal case, availability of writ of prohibition to prevent illegal or unauthorized taking of, 73 A.L.R.2d 1169.

Master or auditor, availability of prohibition to review order of reference to, 76 A.L.R.2d 1120.

Jurisdiction of the person, prohibition as appropriate remedy to restrain civil action for lack of, 92 A.L.R.2d 247.

Judge: prohibition as appropriate remedy to prevent allegedly disqualified judge from proceeding with case, 92 A.L.R.2d 306.

Change of venue in civil case, prohibition as appropriate remedy to review ruling on, 93 A.L.R.2d 802.

Lack of venue, prohibition as appropriate remedy to restrain civil action for, 93 A.L.R.2d 882.

Former jeopardy as ground for prohibition, 94 A.L.R.2d 1048.

Discovery proceedings, availability of prohibition to prevent, 95 A.L.R.2d 1229.

Absentee Voters Laws, prohibition proceedings under, 97 A.L.R.2d 257.

Service of process: attack, by petition for writ of prohibition, on personal service as having been obtained by fraud or trickery, 98 A.L.R.2d 551, 600.

Summary judgment in mandamus or prohibition cases, 3 A.L.R.3d 675.

Res judicata, judgment granting or denying writ of mandamus or prohibition as, 21 A.L.R.3d 206.

Validity, construction, and application of state statutory provisions limiting amount of recovery in medical malpractice claims, 26 A.L.R.5th 245.

32-35-03. Alternative or peremptory.

The writ must be alternative or peremptory. The alternative writ must state generally the allegation against the party to whom it is directed, and must command such party to desist or refrain from further proceedings in the action or matter specified therein until the further order of the court from which it is issued, and to show cause before such court at a specified time and place why such party should not be restrained absolutely from any further proceedings in such action or matter. The peremptory writ must be in a similar form, except that the words requiring the party to show cause why the party should not be restrained absolutely must be omitted and a return day inserted.

Source:

C. Civ. P. 1877, § 710; R.C. 1895, § 6125; R.C. 1899, § 6125; R.C. 1905, § 7837; C.L. 1913, § 8472; R.C. 1943, § 32-3503.

Derivation:

Harston’s (Cal.) Practice, 1105.

Collateral References.

Prohibition 23.

72A C.J.S. Prohibition, § 58.

32-35-04. Other laws applicable.

The provisions of sections 32-34-04 through 32-34-13 for the proceeding under the writ of mandamus apply to this proceeding.

Source:

C. Civ. P. 1877, § 711; R.C. 1895, § 6126; R.C. 1899, § 6126; R.C. 1905, § 7838; C.L. 1913, § 8473; R.C. 1943, § 32-3504; S.L. 1983, ch. 82, § 68.

CHAPTER 32-36 Illegitimacy [Repealed]

[Repealed by S.L. 1975, ch. 130, § 28]

Note.

For present provisions, see ch. 14-20.

CHAPTER 32-37 Establishing Date and Place of Birth

32-37-01. Where proceeding maintained.

Any citizen of the United States, either natural born or naturalized, may maintain a proceeding in accordance with this chapter in the district court of the county in which the person resides for the purpose of having a judicial determination of the date and place of the person’s birth.

Source:

S.L. 1943, ch. 272, § 1; R.C. 1943, § 32-3701.

32-37-02. How proceedings instituted — Contents of petition.

Such proceedings for the purpose of having a judicial determination of the date of birth and place of birth shall be instituted by the filing of a petition, which must be duly verified by the petitioner, with the clerk of the district court of the county in which the petitioner resides, setting forth:

  1. That the petitioner is a citizen of the United States.
  2. That the petitioner has resided in the state of North Dakota for one year last past and in the county in which the action is brought for at least ninety days immediately preceding the commencement of the action.
  3. The place and date of birth of the petitioner.
  4. If the petitioner was born within the United States of America, whether or not the parents of the petitioner were transient aliens or alien public ministers or consuls.
  5. The names of the petitioner’s parents, together with the addresses of the petitioner’s parents, if they are living.
  6. If the petitioner was born without the boundaries of the territorial United States of America, facts sufficient to show that the petitioner is a citizen of the United States of America, and the basis upon which citizenship rests.

Source:

S.L. 1943, ch. 272, § 2; R.C. 1943, § 32-3702.

32-37-03. Notice given by clerk of district court.

Upon the filing of a petition of the kind described in this chapter, the clerk of the district court with whom such petition is filed shall issue a notice under the seal of the said district court fixing the time and place for the hearing upon such petition. Such notice shall be published in the official newspaper of the county for two successive weeks, the last publication to be at least ten days before the time set for hearing. Proof of the publication required by this section shall be filed in the office of the clerk of the district court on or before the date set for the hearing on such petition.

Source:

S.L. 1943, ch. 272, § 3; R.C. 1943, § 32-3703.

32-37-04. Hearing — Who may appear — Judgment.

Any citizen of the United States may appear at the hearing provided for in this chapter and shall be heard in favor of or in opposition to the petition, but all objections to said petition must be in writing and must be filed with the court. Upon the hearing thereof, affidavits, including the affidavit of the petitioner, shall be received in evidence and shall have the same force and effect as if the testimony had been taken by deposition. If, after hearing, the court shall be satisfied by competent evidence of the sufficiency of the petition, that the applicant is a citizen of the United States, that the applicant has been a citizen of the state of North Dakota for one year last past and of the county for more than ninety days preceding the filing of the petition, and that the applicant’s date of birth and place of birth are proven, it shall make appropriate findings of fact and conclusions of law and shall order a judgment to that effect, and such judgment shall be entered in the office of the clerk of the district court upon such order. A judgment establishing the date of birth and place of birth of the petitioner shall be entitled to full faith and credit in the same manner as any other judgment of the courts of this state. If, after hearing, the court is not satisfied that the date and place of birth have been proven, it shall make appropriate findings of fact and conclusions of law and shall enter an order for judgment denying the petition, and a judgment shall be entered upon such order in the office of the clerk of the district court.

Source:

S.L. 1943, ch. 272, § 4; R.C. 1943, § 32-3704.

32-37-05. Fees paid by petitioner — Filing copy of judgment. [Effective through August 31, 2022]

The petitioner, upon the filing of the petition, must pay to the clerk of the district court a filing fee as prescribed in subsection 1 of section 27-05.2-03. The cost of the publication of the notice required by this chapter shall be paid by the petitioner. In the event that said judgment shall establish the date and place of birth of the petitioner, the clerk of the court shall certify a copy of such judgment and file the same with the division of vital statistics, state department of health, Bismarck, North Dakota.

Source:

S.L. 1943, ch. 272, § 5; R.C. 1943, § 32-3705; S.L. 1985, ch. 336, § 11; 1995, ch. 243, § 2; 1999, ch. 278, § 56.

32-37-05. Fees paid by petitioner — Filing copy of judgment. [Effective September 1, 2022]

The petitioner, upon the filing of the petition, must pay to the clerk of the district court a filing fee as prescribed in subsection 1 of section 27-05.2-03. The cost of the publication of the notice required by this chapter shall be paid by the petitioner. In the event that said judgment shall establish the date and place of birth of the petitioner, the clerk of the court shall certify a copy of such judgment and file the same with the division of vital statistics, department of health and human services, Bismarck, North Dakota.

Source:

S.L. 1943, ch. 272, § 5; R.C. 1943, § 32-3705; S.L. 1985, ch. 336, § 11; 1995, ch. 243, § 2; 1999, ch. 278, § 56; 2021, ch. 352, § 342, eff September 1, 2022.

32-37-06. District courts have exclusive jurisdiction — Appeals.

The district court of this state shall have exclusive jurisdiction to hear and determine all petitions made under this chapter. Any citizen may appeal from the judgment rendered herein the same as in civil actions.

Source:

S.L. 1943, ch. 272, § 6; R.C. 1943, § 32-3706.

CHAPTER 32-38 Contribution Among Tort-Feasors

32-38-01. Right to contribution.

  1. Except as otherwise provided in this chapter, if two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.
  2. The right of contribution exists only in favor of a tort-feasor who has paid more than that tort-feasor’s pro rata share of the common liability, and that tort-feasor’s total recovery is limited to the amount paid by that tort-feasor in excess of that tort-feasor’s pro rata share. No tort-feasor is compelled to make contribution beyond that tort-feasor’s own pro rata share of the entire liability.
  3. There is no right of contribution in favor of any tort-feasor who has intentionally (willfully or wantonly) caused or contributed to the injury or wrongful death.
  4. A tort-feasor who enters into a settlement with a claimant is not entitled to recover contribution from another tort-feasor whose liability for the injury or wrongful death is not extinguished by the settlement nor in respect to any amount paid in a settlement which is in excess of what was reasonable.
  5. A liability insurer, who by payment has discharged in full or in part the liability of a tort-feasor and has thereby discharged in full its obligation as insurer, is subrogated to the tort-feasor’s right of contribution to the extent of the amount it has paid in excess of the tort-feasor’s pro rata share of the common liability. This provision does not limit or impair any right of subrogation arising from any other relationship.
  6. This chapter does not impair any right or indemnity under existing law. If one tort-feasor is entitled to indemnity from another, the right of the indemnity obligee is for indemnity and not contribution, and the indemnity obligor is not entitled to contribution from the obligee for any portion of the obligor’s indemnity obligation.
  7. This chapter shall not apply to breaches of trust or of other fiduciary obligation.

Source:

S.L. 1957, ch. 223, § 1; R.C. 1943, 1957 Supp., § 32-3801.

Note.

This chapter is derived from the “Uniform Contribution Among Tort-Feasors Act”.

Notes to Decisions

Availability.

Contribution is available whenever two or more persons become jointly or severally liable in tort. Butz v. Werner, 470 N.W.2d 224, 1991 N.D. LEXIS 96 (N.D. 1991).

Common Liability.

The very essence of the action of contribution is common liability. It is the joint liability that determines the right of contribution. Butz v. Werner, 470 N.W.2d 224, 1991 N.D. LEXIS 96 (N.D. 1991).

Contribution Denied.

A tort-feasor who enters into a settlement with a claimant is not entitled to recover contribution from another tort-feasor whose liability for the injury or wrongful death is not extinguished by the settlement nor in respect to any amount paid in a settlement which is in excess of what was reasonable; therefore, because there was no evidence that the third party defendant’s liability was extinguished by the defendant’s settlement with the plaintiffs, the defendant was not entitled to maintain an action for contribution against the third party defendant. Pierce v. Shannon, 2000 ND 54, 607 N.W.2d 878, 2000 N.D. LEXIS 47 (N.D. 2000).

Equitable Share in Burden.

Although contribution is an equitable doctrine, the doctrine requires only that persons under a common burden share that burden equitably. Butz v. Werner, 470 N.W.2d 224, 1991 N.D. LEXIS 96 (N.D. 1991).

Liability of Non-Participating Tort-Feasor.

A non-sued tort-feasor, who neither acted in concert with, nor aided or encouraged a sued tort-feasor, nor ratified or adopted that tort-feasor’s act, was not liable for contribution to the sued tort-feasor. Target Stores v. Automated Maintenance Servs., 492 N.W.2d 899, 1992 N.D. LEXIS 239 (N.D. 1992).

Nuisance Tort-Feasor.

Nothing within this chapter restricts its application to situations in which parties act in concert or jointly; statute applies when parties become jointly or severally liable in tort for same indivisible injury, even if one party becomes liable as result of maintaining a nuisance which may be either with or without negligence. Thorson v. City of Minot, 153 N.W.2d 764 (N.D. 1967), decided prior to the enactment of N.D.C.C. §§ 32-03.2-02 and 32-03.2-03.

Separate Action.

A claim for contribution is a separate and distinct action from the underlying tort. The rights and obligations of the tort-feasors flow, not from the tort, but from the judgment or settlement itself. Butz v. Werner, 470 N.W.2d 224, 1991 N.D. LEXIS 96 (N.D. 1991).

Workers Compensation Provisions.

Where employer has complied with the workmen’s compensation statutes, the exclusive remedy provisions of the workmen’s compensation statutes operate to foreclose such employer’s liability for contribution. Gernand v. Ost Servs., 298 N.W.2d 500, 1980 N.D. LEXIS 300 (N.D. 1980).

Collateral References.

Contribution 5.

18 Am. Jur. 2d, Contribution, §§ 54 et seq.

Settlement: contribution between joint tort-feasors as affected by settlement with one or both by person injured or damaged, 8 A.L.R.2d 196.

Parties: right of defendant in action for personal injury or death to bring in joint tort-feasor for purpose of asserting right of contribution, 11 A.L.R.2d 228.

Interest, right of one entitled to contribution to recover, 27 A.L.R.2d 1268.

Uniform Contribution Among Tortfeasors Act, 34 A.L.R.2d 1107.

Common-law contribution between negligent tort-feasors, 60 A.L.R.2d 1366.

Measure of contribution between tortfeasors against whom judgments in different amounts have been rendered, 72 A.L.R.2d 1298.

Venue of claim for contribution or indemnity arising from payment of a judgment or claim in a motor vehicle accident case, 84 A.L.R.2d 994.

Willful or gross negligence, right of tort-feasor guilty of only ordinary negligence to be indemnified by one guilty of, 88 A.L.R.2d 1355.

What law governs right to contribution or indemnity between tort-feasors, 95 A.L.R.2d 1096.

Liability insurance policy as covering insured’s obligation to indemnify, or make contributions to, cotort-feasor, 4 A.L.R.3d 620.

Medical attendant: right of tort-feasor initially causing injury to recover indemnity or contribution from medical attendant causing new injury or aggravating injury in course of treatment, 8 A.L.R.3d 639.

Automobiles: right of third person to recover contribution from host-driver for injuries or death of guest where host is not liable to guest under guest statute, 26 A.L.R.3d 1283.

Products liability: right of manufacturer or seller to contribution or indemnity from user of product causing injury or damage to third person, and vice versa, 28 A.L.R.3d 943.

Intoxicating liquors: right of one liable under Civil Damage Act to contribution or indemnity from intoxicated person, or vice versa, 31 A.L.R.3d 438.

Release: tort-feasor’s general release of cotort-feasor general as affecting former’s right to contribution against cotort-feasor, 34 A.L.R.3d 1374.

Relative fault, contribution or indemnity between joint tort-feasors on basis of, 53 A.L.R.3d 184.

Limitations of actions: when statute of limitations begins to run against claim for contribution or indemnity based on tort, 57 A.L.R.3d 867.

Limitations of actions: what statute of limitations applies to action for contribution against joint tort-feasor, 57 A.L.R.3d 927.

Tort immunity of nongovernmental charities—modern status, 25 A.L.R.4th 517.

Right of tortfeasor to contribution from joint tortfeasor who is spouse or otherwise in close familial relationship to injured party, 25 A.L.R.4th 1120.

Third-party tortfeasor’s right to have damages recovered by employee reduced by amount of employee’s workers’ compensation benefits, 43 A.L.R.4th 849.

Right of tortfeasor initially causing injury to recover indemnity or contribution from medical attendant aggravating injury or causing new injury in course of treatment, 72 A.L.R.4th 231.

Law Reviews.

Counterclaims and Third-Party Practice under The North Dakota Rules, 34 N.D. L. Rev. 7 (1958).

Comparative Negligence — North Dakota, 51 N.D. L. Rev. 745 (1975).

The North Dakota Equity for Tortfeasors Struggle — Judicial Action vs. Legislative Over-Reaction, 56 N.D. L. Rev. 67 (1980).

The Third Party’s Right to Contribution from an Employer Covered by Workmen’s Compensation, 56 N.D. L. Rev. 373 (1980).

Comparative Legislation.

Jurisdictions which have enacted the Uniform Contribution Among Tortfeasors Act include:

Ariz. Rev. Stat. Ann. §§ 12-2501 to 12-2509.

Ark. Stat. Ann. §§ 16-61-201 to 16-61-212.

Colo. Rev. Stat. §§ 13-50.5-101 to 13-50.5-106.

Del. Code Ann. tit. 10, §§ 6301 to 6308.

Fla. Stat. § 768.31.

Hawaii Rev. Stat. §§ 663-11 to 663-17.

Md. Ann. Code art. 50, §§ 16 to 24.

Mass. Gen. Laws Ann. ch. 231B, §§ 1 to 4.

Miss. Code Ann. § 85-5-5.

Nev. Rev. Stat. §§ 17.225 to 17.305.

N.J. Rev. Stat. §§ 2A:53A-1 to 2A:53A-5.

N.M. Stat. Ann. §§ 41-3-1 to 41-3-8.

N.C. Gen. Stat. §§ 1B-1 to 1B-6.

Ohio Rev. Code Ann. §§ 2307.31, 2307.33.

Okla. Stat. tit. 12, § 832.

Pa. Stat. Ann. tit. 42, §§ 8321 to 8327.

R.I. Gen. Laws §§ 10-6-1 to 10-6-11.

S.C. Code Ann. §§ 15-38-10 to 15-38-70.

S.D. Cod. Laws §§ 15-8-11 to 15-8-22.

Tenn. Code Ann. §§ 29-11-101 to 29-11-106.

32-38-02. Pro rata shares.

In determining the pro rata shares of tort-feasors in the entire liability:

  1. Their relative degrees of fault shall not be considered.
  2. If equity requires, the collective liability of some as a group shall constitute a single share.
  3. Principles of equity applicable to contribution generally shall apply.

Source:

S.L. 1957, ch. 223, § 2; R.C. 1943, 1957 Supp., § 32-3802.

Note.

Subsection 1 has been impliedly repealed by section 9-10-07. See Bartels v. City of Williston, 276 N.W.2d 113 (N.D. 1979) annotated below.

Cross-References.

Modified Comparative Fault, see N.D.C.C. § 32-03.2-02.

Notes to Decisions

Vicarious Liability.

In construing this section together with N.D.C.C. § 32-38-04, release of a servant for his wrongful conduct also releases master from vicarious liability. Horejsi v. Anderson, 353 N.W.2d 316, 1984 N.D. LEXIS 366 (N.D. 1984).

DECISIONS UNDER PRIOR LAW

Comparative Negligence Actions.

In determining the right of a tort-feasor to contribution in a comparative negligence action, the pro rata shares of the common liability shall be determined in proportion to the percentage of negligence attributable to each tort-feasor under former section 9-10-07. Bartels v. Williston, 276 N.W.2d 113, 1979 N.D. LEXIS 207 (N.D. 1979).

Implied Repeal of Subsection 1.

Subsection 1 provision that the relative degrees of fault shall not be considered in determining the pro rata shares of tort-feasors in the entire liability has been impliedly repealed by the enactment of the comparative negligence statute, former N.D.C.C. § 9-10-07. Bartels v. Williston, 276 N.W.2d 113, 1979 N.D. LEXIS 207 (N.D. 1979).

Relative Degrees of Fault.

Where independent tortious acts of two or more persons supplement one another and concur in contributing to and producing single indivisible injury, such persons are joint tort-feasors, notwithstanding the absence of concerted action; this section was applicable where cross-claimant contractor and cross-defendant subcontractor were both tort-feasors and, under it, both were required to share equally in the damages without necessity for assessing degree of fault between them. Steuber v. Hastings Heating & Sheet Metal Co., 153 N.W.2d 804, 1967 N.D. LEXIS 93 (N.D. 1967).

Law Reviews.

Release of Servant and Respondant Superior Liability: Comment on Horejsi v. Anderson, 353 N.W.2d 316 (1984), 61 N.D. L. Rev. 427 (1985).

32-38-03. Enforcement.

  1. Whether or not judgment has been entered in an action against two or more tort-feasors for the same injury or wrongful death, contribution may be enforced by separate action.
  2. When a judgment has been entered in an action against two or more tort-feasors for the same injury or wrongful death, contribution may be enforced in that action by judgment in favor of one against other judgment defendants by motion upon notice to all parties to the action.
  3. If there is a judgment for the injury or wrongful death against the tort-feasor seeking contribution, any separate action by that tort-feasor to enforce contribution must be commenced within one year after the judgment has become final by lapse of time for appeal or after appellate review.
  4. If there is no judgment for the injury or wrongful death against the tort-feasor seeking contribution, the tort-feasor’s right of contribution is barred unless the tort-feasor has either discharged by payment the common liability within the statute of limitations period applicable to the claimant’s claim for relief against the tort-feasor and has commenced action for contribution within one year after payment, or agreed while action is pending against such tort-feasor to discharge the common liability and has within one year after the agreement paid the liability and commenced action for contribution.
  5. The recovery of a judgment for an injury or wrongful death against one tort-feasor does not of itself discharge the other tort-feasors from liability for the injury or wrongful death unless the judgment is satisfied. The satisfaction of the judgment does not impair any right of contribution.
  6. The judgment of the court in determining the liability of the several defendants to the claimant for an injury or wrongful death shall be binding as among such defendants in determining their right to contribution.

Source:

S.L. 1957, ch. 223, § 3; R.C. 1943, 1957 Supp., § 32-3803; S.L. 1985, ch. 82, § 83.

Notes to Decisions

Statute of Limitations.

Where a settlement payment is made, an action for contribution is barred if it is not commenced within one year thereafter. Hartford Acci. & Indem. Co. v. R. Herschel Mfg. Co., 453 F. Supp. 1375, 1978 U.S. Dist. LEXIS 16146 (D.N.D. 1978).

32-38-04. Release or covenant not to sue.

When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:

  1. It does not discharge any of the other tort-feasors from liability for the injury or wrongful death unless its terms so provide; but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater.
  2. It discharges the tort-feasor to whom it is given from all liability for contribution to any other tort-feasor.

Source:

S.L. 1957, ch. 223, § 4; R.C. 1943, 1957 Supp., § 32-3804.

Note.

Subsection 1 has been impliedly amended by section 9-10-07. See Bartels v. City of Williston, 276 N.W.2d 113 (N.D. 1979), annotated under section 32-38-02.

Notes to Decisions

Case Analysis.

For case examining the interrelationship of principles enunciated in Layman v. Braunschweigische Maschinenbauanstalt, Inc., 343 N.W.2d 334, 1983 N.D. LEXIS 434 (N.D. 1983), and Bartels v. Williston, 276 N.W.2d 113, 1979 N.D. LEXIS 207 (N.D. 1979), see Hoerr v. Northfield Foundry & Mach. Co., 376 N.W.2d 323, 1985 N.D. LEXIS 459 (N.D. 1985).

Joint and Several Liability.

To redistribute a statutorily immune employer’s percentage of fault in a negligence action between all causal parties, where a settlement with some of those parties had already been made, so as to reduce plaintiff’s recovery is contrary to the joint and several liability provisions of this section. Hoerr v. Northfield Foundry & Mach. Co., 376 N.W.2d 323, 1985 N.D. LEXIS 459 (N.D. 1985).

Liability Between Settling and Nonsettling Tortfeasors.

By settling with some tortfeasors in a negligence action, a plaintiff expects to have his or her recovery reduced only by that portion of causal fault attributable to the settling defendants. The plaintiff does not impliedly agree, or expect as a natural consequence of entering into a settlement, that he or she will be forced to absorb portions of causal fault attributable to nonsettling tortfeasors who are either insolvent or statutorily immune from suit. Hoerr v. Northfield Foundry & Mach. Co., 376 N.W.2d 323, 1985 N.D. LEXIS 459 (N.D. 1985).

By settling with some tortfeasors in a negligence action, the plaintiff waives joint and several liability only between the settling and nonsettling defendants, and the nonsettling defendants may be held jointly and severally liable for the entire portion of causal fault reduced only by that portion of fault attributable to the settling defendants. Hoerr v. Northfield Foundry & Mach. Co., 376 N.W.2d 323, 1985 N.D. LEXIS 459 (N.D. 1985).

Liability of Released Party.

Where plaintiff charges several defendants with tort and one defendant for consideration is given a release and covenant not to sue, the court will not go into the question of whether the liability of the released defendant was based on tort or implied warranty. Levi v. Montgomery, 120 N.W.2d 383, 1963 N.D. LEXIS 72 (N.D. 1963).

Method Suggested by Court.

In making awards under this section in future situations, the triers of fact, “whether court or jury, not only should determine the full damages but should set forth in the findings or the verdict the full damages and then deduct from them the consideration paid on covenants not to sue, so that all may know from an examination of same” that this section has been complied with. Thorson v. Minot, 153 N.W.2d 764, 1967 N.D. LEXIS 104 (N.D. 1967).

Reduction of Claim.

A defendant held liable for damages is entitled to credit for any amount paid the plaintiff by other defendants where jury was unaware of amount of money paid for covenant not to sue and release. Levi v. Montgomery, 120 N.W.2d 383 (N.D. 1963), decided prior to the enactment of N.D.C.C. §§ 32-03.2-02 and 32-03.2-03; distinguished, Thorson v. Minot, 153 N.W.2d 764, 1967 N.D. LEXIS 104 (N.D. 1967).

Where the court had knowledge of the consideration paid on the covenants by settling defendants and took the sum into account in determining the amount of damages that the multiple plaintiffs should receive in the actions against other defendants which had been tried, to credit again the amount of the consideration paid on the covenants to the judgments would be to apply the provisions of this section twice. Thorson v. Minot, 153 N.W.2d 764, 1967 N.D. LEXIS 104 (N.D. 1967).

Vicarious Liability.

Release of a servant for his wrongful conduct also releases master from vicarious liability. Horejsi v. Anderson, 353 N.W.2d 316, 1984 N.D. LEXIS 366 (N.D. 1984).

Wrongful death plaintiffs’ settlement with and release of the vicariously liable owner of a vehicle did not constitute a release of the driver of the vehicle. Nelson v. Johnson, 1999 ND 171, 599 N.W.2d 246, 1999 N.D. LEXIS 191 (N.D. 1999).

Collateral References.

Contribution 8; Release 33-35, 37-39.

18 Am. Jur. 2d, Contribution, §§ 62-67.

76 C.J.S. Release, §§ 52-57, 61.

Contribution between joint tort-feasors as affected by settlement with one or both by person injured or damages, 8 A.L.R.2d 196.

Tort-feasor’s general release of cotort-feasor as affecting former’s right to contribution against cotort-feasor, 34 A.L.R.3d 1374.

Law Reviews.

Release of Servant and Respondant Superior Liability: Comment on Horejsi v. Anderson, 353 N.W.2d 316 (1984), 61 N.D. L. Rev. 427 (1985).

CHAPTER 32-39 Voluntary Partial Payment of Claims

32-39-01. Voluntary service or partial payment not admissible.

No voluntary service or partial payment of a claim, including a claim of medical malpractice, against any person based on alleged liability of that person for injury or damage arising out of any occurrence may be construed as an admission of fault or liability. Evidence of the service or payment is not admissible in any action for the purpose of determining the amount of any judgment or the liability of any person with respect to the occurrence.

Source:

S.L. 1969, ch. 314, § 1; 1985, ch. 379, § 1.

Collateral References.

Evidence 219.

29 Am. Jur. 2d, Evidence, §§ 493-495.

Medical expenses: admissibility of evidence to show payment, or offer or promise of payment, of medical, hospital, and similar expenses of an injured party by the opposing party, 65 A.L.R.3d 932.

32-39-02. Voluntary service or payment not admission of liability.

No receipt of a voluntary service or partial payment of a claim, including a claim of medical malpractice, against any person based on alleged liability of that person for injury or damage arising out of any occurrence may be construed as a waiver or release of the claim by the person receiving the service or payment, unless a written waiver or release is given. No receipt, provision, or payment of a voluntary service or partial payment of a claim may reduce the amount of damages which may be pleaded and proved in a court proceeding between the parties.

Source:

S.L. 1969, ch. 314, § 2; 1985, ch. 379, § 2.

Collateral References.

Release 13(3), (4).

76 C.J.S. Release, §§ 12, 14.

32-39-03. Agreement by parties — Credit for service or payment.

Upon final voluntary compromise settlement of any claim, including a claim of medical malpractice, against any person based on alleged liability of that person for injury or damage arising out of any occurrence, the parties may make any agreement they desire concerning previous voluntary services or partial payments of the claim. If the claim is tried in a court, after entry of judgment involving the claim, the value of any previous voluntary service or partial payment of the claim must be deducted from the amount of the judgment if the value thereof was included in the assessment of damages contained in the judgment. If, after entry of judgment involving the claim, it is determined by the judgment that the amount of injury or damages is less than the value of the previous services and voluntary payments, the provider of the services or payer of the payments has no claim for relief for the recovery of amounts by which the voluntary services or payments exceed the final court judgment.

Source:

S.L. 1969, ch. 314, § 3; 1985, ch. 82, § 84; 1985, ch. 379, § 3.

CHAPTER 32-40 Environmental Law Enforcement

32-40-01. Short title.

This chapter may be cited and shall be known as the North Dakota Environmental Law Enforcement Act of 1975.

Source:

S.L. 1975, ch. 294, § 1.

Cross-References.

Air pollution, see N.D.C.C. ch. 23-25.

Energy conservation, see N.D.C.C. ch. 49-22.

Nature preserve system, see N.D.C.C. ch. 55-11.

Water pollution, see N.D.C.C. ch. 61-28.

Collateral References.

Health and Environment 25.5.

61A Am. Jur. 2d, Pollution Control, § 1 et seq.

32-40-02. Legislative intent and purpose.

The legislative assembly of North Dakota enacts this Environmental Law Enforcement Act in recognition of the vital role played by environmental laws in maintaining the health, safety, and general welfare of the state’s citizens; the need to maintain a sound system of law, order, and justice; and the need to provide relief to those aggrieved by a failure of others to abide by or enforce the state’s environmental laws.

Source:

S.L. 1975, ch. 294, § 2.

32-40-03. Definitions.

As used in this chapter, unless a different meaning clearly appears from the context:

  1. “Aggrieved” means the suffering of an injury in fact as a result of the alleged violation of a statute, rule, or regulation, and the injury is of the type the statute, rule, or regulation in question was intended to regulate or protect against. It is not necessary for the injury to be economic in nature. The injury is sufficient if it has harmed the party’s use and enjoyment of the protected natural resources in a manner different from the harm to the general public.
  2. “Environmental statute, rule, or regulation” means any statute, rule, or regulation of the state for the protection of the air, water, and other natural resources, including land, minerals, and wildlife, from pollution, impairment, or destruction.
  3. “Person” means any natural person, corporation, limited liability company, association, partnership, receiver, trustee, executor, administrator, guardian, or fiduciary.
  4. “State agency” means any state agency, board, commission, council, officer, office, department, or division.

Source:

S.L. 1975, ch. 294, § 3; 1993, ch. 54, § 106.

Notes to Decisions

Relationship to Other Laws.

Although N.D.C.C. § 38-08-06.4 was an environmental statute for purposes of a private right of action under N.D.C.C. § 32-40-03(2), any remedies were cumulative and did not replace the remedies available under § 38-08-06.4 unless the Industrial Commission refused to act. Vogel v. Marathon Oil Co., 2016 ND 104, 879 N.W.2d 471, 2016 N.D. LEXIS 104 (N.D. 2016).

32-40-04. Cumulative remedies.

The remedies provided by this chapter shall be cumulative and shall not replace statutory or common-law remedies.

Source:

S.L. 1975, ch. 294, § 4.

32-40-05. Enforcement powers of attorney general.

The attorney general shall have the authority to enforce, in the same manner as state’s attorneys, any state environmental statute, rule, or regulation.

Source:

S.L. 1975, ch. 294, § 5.

32-40-06. Who may sue — Defendants — Exception to recovery of damages.

Any state agency, with the approval of the attorney general; any person; or any county, city, township, or other political subdivision, aggrieved by the violation of any environmental statute, rule, or regulation of this state may bring an action in the appropriate district court, either to enforce such statute, rule, or regulation, or to recover any damages that have occurred as a result of the violation, or for both such enforcement and damages. Such action may be brought against any person, state agency, or county, city, township, or other political subdivision allegedly engaged in such violation. However, no damages may be recovered against any state agency, county, city, township, or other political subdivision, except as otherwise provided by law.

Source:

S.L. 1975, ch. 294, § 6.

Collateral References.

Standing to sue for violation of state environmental regulatory statute, 66 A.L.R.4th 685.

32-40-07. Notice to be provided.

Any person, any state agency, or any county, city, township, or other political subdivision, before commencing any action pursuant to section 32-40-06, shall give thirty days’ notice by certified mail of intent to file suit and of the alleged violation to the person alleged to have violated the statute, rule, or regulation; to the state agency or to the political subdivision responsible for the supervision or enforcement of the statute, rule, or regulation alleged to have been violated; to the state’s attorney of the county in which the alleged violation occurred; and to the attorney general. This section shall not apply to emergency proceedings, brought under any environmental statute, rule, or regulation, necessary to protect the health, safety, or welfare of any person.

Source:

S.L. 1975, ch. 294, § 7.

32-40-08. Bond.

The court may order the complainant to post a cash bond in an amount not to exceed five hundred dollars to pay any cost or judgment that might be rendered adverse to a complainant in any action brought under this chapter.

Source:

S.L. 1975, ch. 294, § 8.

32-40-09. Intervention in action.

Any state agency that receives a notice pursuant to section 32-40-07 shall be entitled to intervene as a matter or right in the action unless such action is commenced solely to recover damages for alleged violations.

Source:

S.L. 1975, ch. 294, § 9.

32-40-10. Costs.

If the court finds an action brought under this chapter to have been frivolous, it shall award costs to the defendants. Otherwise, the court may apportion costs among the parties as the interests of justice require.

Source:

S.L. 1975, ch. 294, § 10.

32-40-11. Relief granted.

In any action brought under this chapter, the court may:

  1. Grant the relief specified in the environmental statute alleged to have been violated or pursuant to which the rule or regulation alleged to have been violated was promulgated.
  2. Grant temporary or permanent equitable relief.
  3. Award damages.
  4. Enter any order it deems necessary to enforce compliance with any environmental statute, rule, or regulation of this state.

Source:

S.L. 1975, ch. 294, § 11.

CHAPTER 32-40.1 Lender Liability for Environmental Damage

32-40.1-01. Definitions.

As used in this chapter:

  1. “Lender-owner” means any person who by virtue of foreclosure, whether by action, advertisement, or voluntary, nonjudicial foreclosure, or upon receipts of an assignment, bill of sale, or deed in lieu of foreclosure, becomes the owner of property.
  2. “Representative” means any person acting in the capacity of a receiver, conservator, guardian ad litem, personal representative of a deceased person, or trustee or fiduciary of property, except a trustee or a fiduciary is limited to an entity acting as trustee or fiduciary and which is chartered by the state banking commissioner, the office of the United States comptroller of the currency, or the office of thrift supervision.
  3. “Third party” means a person other than a governmental entity, seeking to enforce a federal, state, or local environmental statute, ordinance, rule, permit, or order.
  4. “Third-party liability” means liability to a third party for any claim arising out of or resulting from contamination or pollution, including a claim for personal injury, consequential damages, lost profits, exemplary damages, or property damages.

Source:

S.L. 1993, ch. 345, § 1.

32-40.1-02. Third-party liability — Environmental damage.

  1. Except as preempted by federal law, a person may not be deemed to be an owner or operator of property who, without participating in the management of the property, holds indicia of ownership primarily to protect a security or lien hold interest in the property or in property in which the property is located.
  2. A lender-owner or representative is not by virtue of becoming the owner of property liable for any third-party liability arising from contamination or pollution emanating from the property before the date the title vests in the lender-owner or representative. For the purposes of this section, the issuance of a sheriff’s certificate of sale is not sufficient to vest title in the lender-owner or representative.
  3. A lender-owner or representative is not by virtue of becoming the owner of property liable for any third-party liability arising from contamination or pollution emanating from the property during the period of ownership so long as, and to the extent that:
    1. The lender-owner or representative does not knowingly cause new contamination or pollution or does not knowingly allow others to cause new contamination or pollution;
    2. The lender-owner has, in good faith, caused an individual, including an officer or employee of the lender-owner, possessing the requisite knowledge and experience to conduct a visual inspection of the property to determine the presence and condition of hazardous wastes or substances and obvious contamination or pollution; and
    3. The lender-owner found by the enforcing agency to be in noncompliance with federal or state laws takes steps to assure compliance with applicable laws.

Source:

S.L. 1993, ch. 345, § 2; 1995, ch. 331, § 1.

32-40.1-03. Extent of application.

This chapter applies to a lender-owner or representative as long as the lender-owner or representative makes reasonable efforts to resell the property and does not affect any liability expressly created under federal or state health or environmental statutes, rules, permits, or orders. This chapter does not apply to a lender-owner who transports or disposes of waste for profit.

Source:

S.L. 1993, ch. 345, § 3.

32-40.1-04. Applicability to civil actions.

This chapter applies to civil actions filed on or after August 1, 1993.

Source:

S.L. 1993, ch. 345, § 4.

CHAPTER 32-40.2 Environmental Audits

32-40.2-01. Environmental audits — Violations.

  1. As used in this section:
    1. “Environmental audit” means a voluntary, internal, and comprehensive evaluation of a facility or activity which is intended to prevent noncompliance with environmental laws, rules, or permits enforced by a regulatory agency under chapter 23.1-04, 23.1-06, 23.1-08, 38-08, or 61-28. An environmental audit may be conducted by an owner, operator, or prospective owner or operator. An employee or independent contractor may conduct an environmental audit on behalf of the owner, operator, or prospective owner or operator.
    2. “Environmental audit report” means a set of documents labeled “Environmental Audit Report: Privileged Document” prepared as a result of an environmental audit which must include a description of the scope of the audit; the information gained in the audit and findings, conclusions, and recommendations; and exhibits and appendices. The exhibits and appendices to the environmental audit report may include interviews with current or former employees, field notes and records of observations, findings, opinions, suggestions, conclusions, guidance, notes, drafts, memoranda, legal analyses, drawings, photographs, laboratory analyses and other analytical data, computer-generated or electronically recorded information, maps, charts, graphs, and surveys and other communications associated with an environmental audit.
    3. “Regulatory agency” means the agency with regulatory authority over the facility or activity.
    4. “Willfully” has the same meaning as provided under section 12.1-02-02.
  2. A regulatory agency may not pursue civil penalties for a violation found during an environmental audit which the regulated entity discloses to the regulatory agency in writing within forty-five days after the violation is found, unless:
    1. The violation caused imminent or substantial harm to human health or the environment;
    2. The violation is found by the regulatory agency before the regulated entity discloses the violation in writing to the regulatory agency;
    3. The regulated entity does not correct the violation within sixty days of discovery or, if correction within sixty days is not possible, within a reasonable period as agreed upon in writing by the regulatory agency, but not to exceed three hundred sixty-five days;
    4. The regulated entity established a pattern of repeated violations of environmental law, rule, permit, or order by committing the same or similar violation that resulted in the imposition of a penalty by a regulatory agency more than once within two years before the date of the disclosure;
    5. The regulated entity willfully violated a state or federal environmental law, rule, or permit;
    6. The violation is a result of gross negligence, as defined under section 1-01-17; or
    7. The regulatory agency assumed primacy over a federally delegated environmental program and a waiver of penalty authority for the violation would result in a state program less stringent than the federal program or the waiver would violate any federal rule required to maintain primacy. If a federally delegated program requires the imposition of a penalty for a violation, to the extent allowed under federal law or rule, the voluntary disclosure must be considered a mitigating factor in determining the penalty amount.
  3. To qualify for a penalty exemption under subsection 2, the regulated entity shall notify the regulatory agency in writing before beginning the environmental audit. The notice must specify the facility or portion of the facility to be audited, the audit’s anticipated start date, and the general scope of the audit. Unless the regulatory agency agrees in writing to an extension, the environmental audit must be completed within one hundred eighty days of the start date. This section may not be construed to authorize uninterrupted or continuous environmental audits.
  4. Reporting a violation is mandatory if the reporting is required under chapter 23.1-04, 23.1-06, 23.1-08, 38-08, or 61-28, any rule or permit implementing those chapters, any federal law or rule, or any administrative or court order.
  5. Notwithstanding subsection 2, the regulatory agency may pursue civil penalties against a regulated entity for a violation disclosed under this section if the regulatory agency finds the regulated entity:
    1. Intentionally misrepresented material facts concerning the violation disclosed or the nature of extent of any damage to human health or the environment; or
    2. Initiated a self-audit to avoid liability for a violation after the regulated entity’s knowledge or imminent discovery.
  6. Unless the privilege is expressly waived by the regulated entity that prepared the report, an environmental audit report is privileged and not admissible evidence in a civil action or proceeding. The regulated entity asserting this privilege has the burden of proving the privilege. The privilege does not apply to:
    1. Information relating to the types of violations listed in subsection 2.
    2. Information relating to a violation subject to a regulatory agency’s finding under subsection 5.
    3. Disclosures, notifications, and other information provided by the regulated entity to the regulatory agency under this section.
  7. Failure to label a document in an exhibit or appendix to an environmental audit report does not constitute a waiver of the audit privilege under this section or create a presumption the privilege does not apply.

Source:

S.L. 2017, ch. 235, § 1, eff August 1, 2017.

CHAPTER 32-41 Uniform Foreign-Money Claims Act

32-41-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Action” means a judicial proceeding or arbitration in which a payment in money may be awarded or enforced with respect to a foreign-money claim.
  2. “Bank-offered spot rate” means the spot rate of exchange at which a bank will sell foreign money at a spot rate.
  3. “Conversion date” means the banking day before the date on which money, in accordance with this chapter, is:
    1. Paid to a claimant in an action or distribution proceeding;
    2. Paid to the official designated by law to enforce a judgment or award on behalf of a claimant; or
    3. Used to recoup, set off, or counterclaim in different moneys in an action or distribution proceeding.
  4. “Distribution proceeding” means a judicial or nonjudicial proceeding for the distribution of a fund in which one or more foreign-money claims is asserted and includes an accounting, an assignment for the benefit of creditors, a foreclosure, the liquidation or rehabilitation of a corporation, limited liability company, or other entity, and the distribution of an estate, trust, or other fund.
  5. “Foreign money” means money other than money of the United States.
  6. “Foreign-money claim” means a claim upon an obligation to pay, or a claim for recovery of a loss, expressed in or measured by a foreign money.
  7. “Money” means a medium of exchange for the payment of obligations or a store of value authorized or adopted by a government or by intergovernmental agreement.
  8. “Money of the claim” means the money determined as proper pursuant to section 32-41-04.
  9. “Rate of exchange” means the rate at which money of one country may be converted into money of another country in a free financial market convenient to or reasonably usable by a person obligated to pay or to state a rate of conversion. If separate rates of exchange apply to different kinds of transactions, the term means the rate applicable to the particular transaction giving rise to the foreign-money claim.
  10. “Spot rate” means the rate of exchange at which foreign money is sold by a bank or other dealer in foreign exchange for immediate or next day availability or for settlement by immediate payment in cash or equivalent, by charge to an account, or by an agreed delayed settlement not exceeding two days.
  11. “State” means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or insular possession subject to the jurisdiction of the United States.

Source:

S.L. 1991, ch. 362, § 1; 1993, ch. 54, § 106.

Note.

This chapter is an adoption of the Uniform Foreign-Money Claims Act.

Section 14 of chapter 362, S.L. 1991, provides that this chapter applies to actions and distribution proceedings commenced after January 1, 1992.

Comparative Legislation.

Jurisdictions which have enacted, or substantially adopted, the Uniform Foreign Money Claims Act include:

Colo. Rev. Stat. §§ 13-62.1-101 to 13-62.1-118.

Haw. Rev. Stat. §§ 658B-1 to 658B-14.

Ill. 735 ILCS 5/12-630 to 735 ILCS 5/12-645.

Utah Code Ann. §§ 78-22b-101 to 78-22b-116.

32-41-02. Scope.

This chapter applies only to a foreign-money claim in an action or distribution proceeding. This chapter applies to foreign-money issues even if other law under the conflict of laws rules of this state applies to other issues in the action or distribution proceeding.

Source:

S.L. 1991, ch. 362, § 2.

32-41-03. Variation by agreement.

The effect of this chapter may be varied by agreement of the parties made before or after commencement of an action or distribution proceeding or the entry of judgment. Parties to a transaction may agree upon the money to be used in a transaction giving rise to a foreign-money claim and may agree to use different moneys for different aspects of the transaction. Stating the price in a foreign money for one aspect of a transaction does not alone require the use of that money for other aspects of the transaction.

Source:

S.L. 1991, ch. 362, § 3.

32-41-04. Determining money of the claim.

The money in which the parties to a transaction have agreed that payment is to be made is the proper money of the claim for payment. If the parties to a transaction have not otherwise agreed, the proper money of the claim, as in each case may be appropriate, is the money:

  1. Regularly used between the parties as a matter of usage or course of dealing;
  2. Used at the time of a transaction in international trade, by trade usage or common practice, for valuing or settling transactions in the particular commodity or service involved; or
  3. In which the loss was ultimately felt or will be incurred by the party claimant.

Source:

S.L. 1991, ch. 362, § 4.

32-41-05. Determining amount of the money of certain contract claims.

  1. If an amount contracted to be paid in a foreign money is measured by a specified amount of a different money, the amount to be paid is determined on the conversion date.
  2. If an amount contracted to be paid in a foreign money is to be measured by a different money at the rate of exchange prevailing on a date before default, that rate of exchange applies only to payments made within a reasonable time after default, not exceeding thirty days. Thereafter, conversion is made at the bank-offered spot rate on the conversion date.
  3. A monetary claim is neither usurious nor unconscionable because the agreement on which it is based provides that the amount of the debtor’s obligation to be paid in the debtor’s money, when received by the creditor, must equal a specified amount of the foreign money of the country of the creditor. If, because of unexcused delay in payment of a judgment or award, the amount received by the creditor does not equal the amount of the foreign money specified in the agreement, the court or arbitrator shall amend the judgment or award accordingly.

Source:

S.L. 1991, ch. 362, § 5.

32-41-06. Asserting and defending foreign-money claim.

  1. A person may assert a claim in a specified foreign money. If a foreign-money claim is not asserted, the claim is in United States dollars.
  2. An opposing party may allege and prove that a claim, in whole or in part, is in a different money than that asserted by the claimant.
  3. A person may assert a defense, setoff, recoupment, or counterclaim in any money without regard to the money of other claims.
  4. The determination of the proper money of the claim is a question of law.

Source:

S.L. 1991, ch. 362, § 6.

32-41-07. Judgments and awards on foreign-money claims — Times of money conversion — Form of judgment.

  1. Except as provided in subsection 3, a judgment or award on a foreign-money claim must be stated in an amount of the money of the claim.
  2. A judgment or award on a foreign-money claim is payable in that foreign money or, at the option of the debtor, in the amount of United States dollars which will purchase that foreign money on the conversion date at a bank-offered spot rate.
  3. Assessed costs must be entered in United States dollars.
  4. Each payment in United States dollars must be accepted and credited on a judgment or award on a foreign-money claim in the amount of the foreign money that could be purchased by the dollars at a bank-offered spot rate of exchange at or near the close of business on the conversion date for that payment.
  5. A judgment or award made in an action or distribution proceeding on both a defense, setoff, recoupment, or counterclaim and the adverse party’s claim, must be netted by converting the money of the smaller into the money of the larger, and by subtracting the smaller from the larger, and must specify the rates of exchange used.
  6. A judgment substantially in the following form complies with subsection 1:
  7. If a contract claim is of the type covered by section 32-41-05, the judgment or award must be entered for the amount of money stated to measure the obligation to be paid in the money specified for payment or, at the option of the debtor, the number of United States dollars which will purchase the computed amount of the money of payment on the conversion date at a bank-offered spot rate.
  8. A judgment must be docketed and indexed in foreign money in the same manner, and has the same effect as a lien, as other judgments. A judgment may be discharged by payment.

IT IS ADJUDGED AND ORDERED, that defendant (insert name) pay to plaintiff (insert name) the sum of (insert amount in the foreign money) plus interest on that sum at the rate of (insert rate) percent a year or, at the option of the judgment debtor, the number of United States dollars which will purchase the (insert name of foreign money) with interest due, at a bank-offered spot rate at or near the close of business on the banking day next before the day of payment, together with assessed costs of (insert amount) United States dollars.

Source:

S.L. 1991, ch. 362, § 7.

32-41-08. Conversions of foreign money in distribution proceeding.

The rate of exchange prevailing at or near the close of business on the day the distribution proceeding is initiated governs all exchanges of foreign money in a distribution proceeding. A foreign-money claimant in a distribution proceeding shall assert its claim in the named foreign money and show the amount of United States dollars resulting from a conversion as of the date the proceeding was initiated.

Source:

S.L. 1991, ch. 362, § 8.

32-41-09. Prejudgment and judgment interest.

  1. With respect to a foreign-money claim, recovery of prejudgment or preaward interest and the rate of interest to be applied in the action or distribution proceeding, except as provided in subsection 2, are matters of the substantive law governing the right to recovery under the conflict-of-laws rules of this state.
  2. The court or arbitrator shall increase or decrease the amount of prejudgment or preaward interest otherwise payable in a judgment or award in foreign money to the extent required by the law of this state governing a failure to make or accept an offer of settlement or offer of judgment, or conduct by a party, or its attorney causing undue delay or expense.
  3. A judgment or award on a foreign-money claim bears interest at the rate applicable to judgments of this state.

Source:

S.L. 1991, ch. 362, § 9.

32-41-10. Enforcement of foreign judgments.

  1. If an action is brought to enforce a judgment of another jurisdiction expressed in a foreign money and the judgment is recognized in this state as enforceable, the enforcing judgment must be entered as provided in section 32-41-07, whether or not the foreign judgment confers an option to pay in an equivalent amount of United States dollars.
  2. A foreign judgment may be docketed in accordance with any rule or statute of this state providing a procedure for its recognition and enforcement.
  3. A satisfaction or partial payment made upon the foreign judgment, on proof thereof, must be credited against the amount of foreign money specified in the judgment, notwithstanding the entry of judgment in this state.
  4. A judgment entered on a foreign-money claim only in United States dollars in another state must be enforced in this state in United States dollars only.

Source:

S.L. 1991, ch. 362, § 10.

32-41-11. Determining United States dollar value of foreign-money claims for limited purposes.

  1. Computations under this section are for the limited purposes of the section and do not affect computation of the United States dollar equivalent of the money of the judgment for the purpose of payment.
  2. For the limited purpose of facilitating the enforcement of provisional remedies in an action, the value in United States dollars of assets to be seized or restrained pursuant to a writ of attachment, garnishment, execution, or other legal process, the amount of United States dollars at issue for assessing costs, or the amount of United States dollars involved for a surety bond or other court-required undertaking, must be ascertained as provided in subsections 3 and 4.
  3. A party seeking process, costs, bond, or other undertaking under subsection 2 shall compute in United States dollars the amount of the foreign money claimed from a bank-offered spot rate prevailing at or near the close of business on the banking day before the filing of a request or application for the issuance of process or for the determination of costs, or an application for a bond or other court-required undertaking.
  4. A party seeking the process, costs, bond, or other undertaking under subsection 2 shall file with each request or application an affidavit or certificate executed in good faith by its counsel or a bank officer, stating the market quotation used and how it was obtained, and setting forth the calculation. Affected court officials incur no liability, after a filing of the affidavit or certificate, for acting as if the judgment were in the amount of United States dollars stated in the affidavit or certificate.

Source:

S.L. 1991, ch. 362, § 11.

32-41-12. Effect of currency revalorization.

If, after an obligation is expressed or a loss is incurred in a foreign money, the country issuing or adopting that money substitutes a new money in place of that money, the obligation or the loss is treated as if expressed or incurred in the new money at the rate of conversion the issuing country establishes for the payment of like obligations or losses denominated in the former money. If the substitution occurs after a judgment or award is entered on a foreign-money claim, the court or arbitrator shall amend the judgment or award by a like conversion of the former money.

Source:

S.L. 1991, ch. 362, § 12.

32-41-13. Supplementary general principles of law.

Unless displaced by this chapter, the principles of law and equity, including the law merchant, and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating causes supplement this chapter.

Source:

S.L. 1991, ch. 362, § 13.

CHAPTER 32-42 Alternative Dispute Resolution

32-42-01. Definitions.

In this chapter:

  1. “Alternative dispute resolution” means the resolution of a health care malpractice claim in a manner other than through a health care malpractice action.
  2. “Claimant” means any person who alleges a health care malpractice claim, and any person on whose behalf the claim is alleged, including the decedent in the case of an action brought through or on behalf of an estate.
  3. “Health care malpractice action” means a claim for relief brought against a health care provider, or other defendant joined in the action, regardless of the theory of liability on which the claim is based, in which the claimant alleges a health care malpractice claim.
  4. “Health care malpractice claim” means a claim brought against a health care provider or other defendant joined in a claim alleging that an injury was suffered by the claimant as a result of health care negligence or gross negligence, breach of express or implied warranty or contract, failure to discharge a duty to warn, or failure to obtain consent arising from the provision of or failure to provide health care services.
  5. “Health care negligence” means an act or omission by a health care provider which deviates from the applicable standard of care and causes an injury.
  6. “Health care provider” means a person who is licensed, certified, or otherwise authorized by the law of this state to administer health care in the ordinary course of business or practice of a profession.
  7. “Injury” means an injury, illness, disease, or other harm suffered by an individual as a result of the provision of health care services by a health care provider.
  8. “Noneconomic damage” means damage arising from pain; suffering; inconvenience; physical impairment; disfigurement; mental anguish; emotional distress; fear of injury, loss, or illness; loss of society and companionship; loss of consortium; injury to reputation; humiliation; and other nonpecuniary damage incurred by an individual with respect to which a health care malpractice action or claim is pursued.

Source:

S.L. 1995, ch. 246, § 29.

Collateral References.

Medical malpractice: physician’s admission of negligence as establishing standard of care and breach of that standard, 42 A.L.R.5th 1.

Medical malpractice in connection with diagnosis, care, or treatment of diabetes, 43 A.L.R.5th 87.

32-42-02. Noneconomic damages limited — Reduction of award.

With respect to a health care malpractice action or claim, the total amount of compensation that may be awarded to a claimant or members of the claimant’s family for noneconomic damage resulting from an injury alleged under the action or claim may not exceed five hundred thousand dollars, regardless of the number of health care providers and other defendants against whom the action or claim is brought or the number of actions or claims brought with respect to the injury. With respect to actions heard by a jury, the jury may not be informed of the limitation contained in this section. If necessary, the court shall reduce the damages awarded by a jury to comply with the limitation in this section.

Source:

S.L. 1995, ch. 246, § 29.

Notes to Decisions

Constitutionality.

Damage cap in the statute does not violate the equal-protection provisions of N.D. Const. art. I, § 21 and is not unconstitutional; the statute does not prevent seriously injured individuals from being fully compensated for any amount of medical care or lost wages, but instead, injured individuals are prevented from receiving more abstract damages in excess of $ 500,000. Condon v. St. Alexius Med. Ctr., 2019 ND 113, 926 N.W.2d 136, 2019 N.D. LEXIS 116 (N.D. 2019).

District court erred in denying a doctor’s motion for a reduction of noneconomic damages on the ground that the statute was unconstitutional because there was a close correspondence between the damage cap at issue in the case and legitimate legislative goals to satisfy the intermediate level of scrutiny under N.D. Const. art. I, § 21; the statute is supported by the general goals of the health care task force and testimony suggesting benefits to insurance rates may result from the cap. Condon v. St. Alexius Med. Ctr., 2019 ND 113, 926 N.W.2d 136, 2019 N.D. LEXIS 116 (N.D. 2019).

32-42-03. Alternative dispute resolution.

  1. Before initiating a health care malpractice action, the attorney representing a claimant shall advise the claimant about all reasonably available alternative dispute resolution options that may be available to the parties to settle the claim.
  2. At the earliest opportunity after the attorney for a health care provider has notice of a potential health care malpractice claim or action, the attorney shall advise the health care provider about all reasonably available alternative dispute resolution options that may be available to the parties to settle the claim.
  3. The claimant and health care provider shall make a good-faith effort to resolve part or all of the health care malpractice claim through alternative dispute resolution before the claimant initiates a health care malpractice action.
  4. The attorneys for the claimant and health care provider shall state in the pleadings that they have complied with subsections 1 and 2 and that the parties have complied with subsection 3.
  5. The court may sanction an attorney who fails to comply with subsection 1 or 2.
  6. Notwithstanding section 28-26-01, the court, upon a finding that a party refused to comply with subsection 3, may award reasonable actual and statutory costs, including part or all of the attorney’s fees to the prevailing party or parties.

Source:

S.L. 1995, ch. 246, § 29.

32-42-04. Effective date. [Repealed]

Repealed by S.L. 2009, ch. 65, § 8.

Effective Date.

The repeal of this section by section 8 of chapter 65, S.L. 2009 became effective August 1, 2009.

CHAPTER 32-43 Uniform Correction or Clarification of Defamation Act

32-43-01. Definitions.

In this chapter:

  1. “Defamatory” means tending to harm reputation.
  2. “Economic loss” means special, pecuniary loss caused by a false and defamatory publication.
  3. “Person” includes any legal or commercial entity. The term does not include a government or governmental subdivision, agency, or instrumentality.

Source:

S.L. 1995, ch. 332, § 1.

Collateral References.

Defamation of church member by church or church official, 109 A.L.R.5th 541.

Defamation of Psychiatrist, Psychologist, or Counselor. 67 A.L.R.6th 437.

32-43-02. Scope.

This chapter applies to any claim for relief, however characterized, for damages arising out of defamation caused by the false content of a publication that is published on or after August 1, 1995. This chapter applies to all publications, including writings, broadcasts, oral communications, electronic transmissions, or other forms of transmitting information.

Source:

S.L. 1995, ch. 332, § 2.

32-43-03. Request for correction or clarification.

  1. A person may maintain an action for defamation only if the person has made a timely and adequate request for correction or clarification from the defendant or the defendant has made a correction or clarification.
  2. A request for correction or clarification is timely if made within the period of limitation for commencement of an action for defamation. However, a person who, within ninety days after knowledge of the publication, fails to make a good-faith attempt to request a correction or clarification may recover only provable economic loss.
  3. A request for correction or clarification is adequate if the request:
    1. Is made in writing and reasonably identifies the person making the request;
    2. Specifies with particularity the statement alleged to be false and defamatory and, to the extent known, the time and place of publication;
    3. Alleges the defamatory meaning of the statement;
    4. Specifies the circumstances giving rise to any defamatory meaning of the statement which arises from other than the express language of the publication; and
    5. States that the alleged defamatory meaning of the statement is false.
  4. In the absence of a previous adequate request, service of a summons and complaint stating a claim for relief for defamation and containing the information required in subsection 3 constitutes an adequate request for correction or clarification.
  5. The period of limitation for commencement of a defamation action is tolled during the period allowed in section 32-43-06 for responding to a request for correction or clarification.

Source:

S.L. 1995, ch. 332, § 3.

32-43-04. Disclosure of evidence of falsity.

A person who has been requested to make a correction or clarification may ask the requester to disclose reasonably available information material to the falsity of the allegedly defamatory statement. If a correction or clarification is not made, a person who unreasonably fails to disclose the information after a request to do so may recover only provable economic loss. A correction or clarification is timely if published within twenty-five days after receipt of information disclosed under this section or forty-five days after receipt of a request for correction or clarification, whichever is later.

Source:

S.L. 1995, ch. 332, § 4.

32-43-05. Effect of correction or clarification.

If a timely and sufficient correction or clarification is made, a person may recover only provable economic loss, as mitigated by the correction or clarification.

Source:

S.L. 1995, ch. 332, § 5.

32-43-06. Timely and sufficient correction or clarification.

  1. A correction or clarification is timely if it is published before, or within forty-five days after, receipt of a request for correction or clarification, unless the period is extended under section 32-43-04.
  2. A correction or clarification is sufficient if it:
    1. Is published with a prominence and in a manner and medium reasonably likely to reach substantially the same audience as the publication complained of;
    2. Refers to the statement being corrected or clarified and:
      1. Corrects the statement;
      2. In the case of defamatory meaning arising from other than the express language of the publication, disclaims an intent to communicate that meaning or to assert its truth; or
      3. In the case of a statement attributed to another person, disclaims an intent to assert the truth of the statement; and
    3. Is communicated to the person who has made a request for correction or clarification.
  3. A correction or clarification is published in a medium reasonably likely to reach substantially the same audience as the publication complained of if it is published in a later issue, edition, or broadcast of the original publication.
  4. If a later issue, edition, or broadcast of the original publication will not be published within the time limits established for a timely correction or clarification, a correction or clarification is published in a manner and medium reasonably likely to reach substantially the same audience as the publication complained of if:
    1. It is timely published in a reasonably prominent manner in another medium likely to reach an audience reasonably equivalent to the original publication or, if the parties cannot agree on another medium, in the newspaper with the largest general circulation in the region in which the original publication was distributed;
    2. Reasonable steps are taken to correct undistributed copies of the original publication, if any; and
    3. It is published in the next practicable issue, edition, or broadcast, if any, of the original publication.
  5. A correction or clarification is timely and sufficient if the parties agree in writing that it is timely and sufficient.

Source:

S.L. 1995, ch. 332, § 6.

32-43-07. Challenges to correction or clarification or to request for correction or clarification.

  1. If a defendant in an action governed by this chapter intends to rely on a timely and sufficient correction or clarification, the defendant’s intention to do so, and the correction or clarification relied upon, must be set forth in a notice served on the plaintiff within sixty days after service of the summons and complaint or ten days after the correction or clarification is made, whichever is later. A correction or clarification is deemed to be timely and sufficient unless the plaintiff challenges its timeliness or sufficiency within twenty days after the notice is served.
  2. If a defendant in an action governed by this chapter intends to challenge the adequacy or timeliness of a request for correction or clarification, the defendant must set forth the challenge in a motion to declare the request inadequate or untimely served within sixty days after service of the summons and complaint. The court shall rule on the motion at the earliest appropriate time before trial.

Source:

S.L. 1995, ch. 332, § 7.

32-43-08. Offer to correct or clarify.

  1. If a timely correction or clarification is no longer possible, the publisher of an alleged defamatory statement may offer, at any time before trial, to make a correction or clarification. The offer must be made in writing to the person allegedly defamed by the publication and:
    1. Contain the publisher’s offer to publish, at the person’s request, a sufficient correction or clarification and to pay the person’s reasonable expenses of litigation, including attorney’s fees, incurred before publication of the correction or clarification; and
    2. Be accompanied by a copy of the proposed correction or clarification and the plan for its publication.
  2. If the person accepts in writing an offer to correct or clarify made pursuant to subsection 1, the person is barred from commencing an action against the publisher based on the statement or, if an action has been commenced, the court shall dismiss the action against the defendant with prejudice after the defendant complies with the terms of the offer.
  3. A person who does not accept an offer made in conformance with subsection 1 may recover in an action based on the statement only damages for provable economic loss and reasonable expenses of litigation, including attorney’s fees, incurred before the offer, unless the person failed to make a good-faith attempt to request a correction or clarification in accordance with subsection 2 of section 32-43-03 or failed to disclose information in accordance with section 32-43-04.
  4. On request of either party, a court shall promptly determine the sufficiency of the offered correction or clarification.
  5. The court shall determine the amount of reasonable expenses of litigation, including attorney’s fees, specified in subsections 1 and 3.

Source:

S.L. 1995, ch. 332, § 8.

32-43-09. Scope of protection.

A timely and sufficient correction or clarification made by a person responsible for a publication constitutes a correction or clarification made by all persons responsible for that publication other than a republisher. However, a correction or clarification that is sufficient only under paragraph 3 of subdivision b of subsection 2 of section 32-43-06 does not constitute a correction or clarification made by the person to whom the statement is attributed.

Source:

S.L. 1995, ch. 332, § 9.

32-43-10. Admissibility of evidence of correction or clarification.

  1. The fact of a request for correction or clarification under this chapter, the contents of the request, and its acceptance or refusal are not admissible in evidence at trial.
  2. The fact that a correction or clarification under this chapter was made and the contents of the correction or clarification are not admissible in evidence at trial except in mitigation of damages pursuant to section 32-43-05. If the fact that a correction or clarification was made or the contents of the correction or clarification are received in evidence, the fact of the request may also be received.
  3. The fact of an offer of correction or clarification, or the fact of its refusal, and the contents of the offer are not admissible in evidence at trial.

Source:

S.L. 1995, ch. 332, § 10.

CHAPTER 32-44 Defamation of Agricultural Products and Management Practices

32-44-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Agricultural producer” means any person engaged in growing, raising, distributing, or selling an agricultural product, or manufacturing the product for consumer use.
  2. “Agricultural product” means any plant or animal, or the product of a plant or animal, grown, raised, distributed, or sold for a commercial purpose. The term also includes any agricultural practices used in the production of such products.
  3. “Defamatory statement” means intentional words or conduct which reflects on the character or reputation of another or upon the quality, safety, or value of another’s property in a manner which tends:
    1. To lower another in the estimation of the community;
    2. To deter third persons from dealing with another; or
    3. To deter third persons from buying the products of another.
  4. “Disseminate” means to publish or otherwise convey a statement to a third party but does not include repeating a false and defamatory statement made by another unless the person repeating the statement knew the statement was false.
  5. “False statement” means a statement that either expressly includes a fact or implies a fact as justification for an opinion and the fact is not based upon reasonable and reliable scientific inquiry, data, or facts.
  6. “Knowing the statement to be false” means the communicator knew the statement was false or acted with reckless disregard of whether the statement was false.

Source:

S.L. 1997, ch. 288, § 1.

Notes to Decisions

Agricultural Lien.

N.D.C.C. §§ 41-09-02(1)(kk), 41-09-42(7), 41-09-02(1)(jj), 41-09-09(1)(b), and § 32-44-01(2), which were enacted subsequent to the enactment of N.D.C.C. ch. 35-31, do not reflect a legislative intent to exclude livestock from the priority given under N.D.C.C. § 35-31-03. Therefore, a trial court properly granted summary judgment in favor of a supplier of poults because it had super-priority over a perfected lien held by a lender. Great Western Bank v. Willmar Poultry Co., 2010 ND 50, 780 N.W.2d 437, 2010 N.D. LEXIS 51 (N.D. 2010).

32-44-02. Civil liability for defamation of agricultural producers.

A person who willfully or purposefully disseminates a false and defamatory statement, knowing the statement to be false, regarding an agricultural producer or an agricultural product under circumstances in which the statement may be reasonably expected to be believed and the agricultural producer is damaged as a result, is liable to the agricultural producer for damages and other relief allowed by law in a court of competent jurisdiction, including injunctive relief and compensatory and exemplary damages. If it is found by a court or jury that a person has maliciously disseminated a false and defamatory statement regarding an agricultural product or agricultural producer, the agricultural producer may recover up to three times the actual damages proven and the court must order that the agricultural producer recover costs, disbursements, and actual reasonable attorney’s fees incurred in the action.

Source:

S.L. 1997, ch. 288, § 2.

32-44-03. Persons entitled to claim for relief.

In addition to the provisions of section 32-44-02, if a false and defamatory statement is disseminated referring to an entire group or class of agricultural producers or products, a cause of action arises in favor of each producer of the group or class and any association representing an agricultural producer, regardless of the size of the group or class. Each cause of action by a producer or an association representing an agricultural producer in such case is limited to the actual damages of the producer, injunctive relief, and exemplary damages.

Source:

S.L. 1997, ch. 288, § 3.

32-44-04. Statute of limitations.

Any civil action for damages under this chapter must be commenced within two years from the date of the false and defamatory statement.

Source:

S.L. 1997, ch. 288, § 4.

CHAPTER 32-45 Year 2000 Disruption Actions [Repealed]

[Expired under S.L. 1999, ch. 307, § 8]

CHAPTER 32-46 Asbestos-Related Liability Of Successor

32-46-01. Definitions.

As used in this chapter:

  1. “Asbestos claim” means a claim, wherever or whenever made, for damages, losses, indemnification, contribution, or other relief arising out of, based on, or in any way related to asbestos, including:
    1. The health effects of exposure to asbestos, including a claim for personal injury or death, mental or emotional injury, risk of disease or other injury, or the costs of medical monitoring or surveillance;
    2. A claim made by or on behalf of a person exposed to asbestos, or a representative, spouse, parent, child, or other relative of the person; and
    3. A claim for damage or loss caused by the installation, presence, or removal of asbestos.
  2. “Corporation” means a corporation for profit, including a domestic corporation organized under the laws of this state or a foreign corporation organized under laws other than the laws of this state.
  3. “Innocent successor” means a corporation that assumes or incurs or has assumed or incurred successor asbestos-related liabilities that is a successor and became a successor before January 1, 1972, or is any of that successor corporation’s successors.
  4. “Successor asbestos-related liabilities” means a liability, whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, or due or to become due, which is related to asbestos claims and were assumed or incurred by a corporation as a result of or in connection with a merger or consolidation, or the plan of merger or consolidation related to the merger or consolidation with or into another corporation, or that is related in any way to asbestos claims based on the exercise of control or the ownership of stock of the corporation before the merger or consolidation. The term includes liabilities that, after the time of the merger or consolidation for which the fair market value of total gross assets is determined under section 32-46-04, were or are paid or otherwise discharged, or committed to be paid or otherwise discharged, by or on behalf of the corporation, or by a successor of the corporation, or by or on behalf of a transferor, in connection with settlements, judgments, or other discharges in this state or another jurisdiction.
  5. “Transferor” means a corporation from which successor asbestos-related liabilities are or were assumed or incurred.

Source:

S.L. 2009, ch. 290, § 1.

Effective Date.

This chapter became effective August 1, 2009.

Collateral References.

Liability of Property Owners to Persons Who Have Never Been on or Near Their Property for Exposure to Asbestos Carried Home on Household Member’s Clothing, 33 A.L.R.6th 325.

Retroactive Application of State Statutes Concerning Asbestos Liability. 41 A.L.R.6th 445.

32-46-02. Applicability.

  1. The limitations in section 32-46-03 apply to an innocent successor corporation.
  2. The limitations of section 32-46-03 do not apply to:
    1. Workers’ compensation benefits paid by or on behalf of an employer to an employee under the provisions of title 65, or a comparable workers’ compensation law of another jurisdiction;
    2. A claim against a corporation that does not constitute a successor asbestos-related liability; or
    3. An obligation under the National Labor Relations Act [29 U.S.C. 151 et seq.], or under a collective bargaining agreement.

Source:

S.L. 2009, ch. 290, § 1.

32-46-03. Measure of liabilities.

  1. Except as further limited in subsection 2, the cumulative successor asbestos-related liabilities of an innocent successor corporation are limited to the fair market value of the total gross assets of the transferor determined as of the time of the merger or consolidation. The innocent successor corporation does not have responsibility for successor asbestos-related liabilities in excess of this limitation.
  2. If the transferor had assumed or incurred successor asbestos-related liabilities or liabilities in connection with a prior merger or consolidation with a prior transferor, then the fair market value of the total assets of the prior transferor determined as of the time of the earlier merger or consolidation must be substituted for the limitation set forth in subsection 1 for purposes of determining the limitation of liability of an innocent successor corporation.

Source:

S.L. 2009, ch. 290, § 1.

32-46-04. Establishing fair market value of total gross assets.

  1. An innocent successor corporation may establish the fair market value of total gross assets for the purpose of the limitations under section 32-46-03 through any method reasonable under the circumstances, including:
    1. By reference to the going concern value of the assets or to the purchase price attributable to or paid for the assets in an arm’s-length transaction; or
    2. In the absence of other readily available information from which the fair market value may be determined, by reference to the value of the assets recorded on a balance sheet.
  2. Total gross assets include intangible assets.
  3. To the extent total gross assets include liability insurance that was issued to the transferor whose assets are being valued for purposes of this section, the applicability, terms, conditions, and limits of the insurance are not affected by this chapter, nor does this chapter otherwise affect the rights and obligations of an insurer, transferor, or successor under an insurance contract or any related agreements, including pre-enactment settlements resolving coverage-related disputes, and the rights of an insurer to seek payment for applicable deductibles, retrospective premiums, or self-insured retentions or to seek contribution from a successor for uninsured or self-insured periods or periods when insurance is uncollectible or otherwise unavailable. Without limiting the foregoing, to the extent total gross assets include any such liability insurance, a settlement of a dispute concerning the liability insurance coverage entered into by a transferor or successor with the insurers of the transferor before August 1, 2009, are determinative of the total coverage of the liability insurance to be included in the calculation of the transferor’s total gross assets.

Source:

S.L. 2009, ch. 290, § 1.

32-46-05. Adjustment.

  1. Except as provided in subsections 2 through 4, the fair market value of total gross assets at the time of the merger or consolidation increases annually at a rate equal to the sum of:
    1. The prime rate as listed in the first edition of the Wall Street Journal published for each calendar year since the merger or consolidation, unless the prime rate is not published in that edition of the Wall Street Journal, in which case any reasonable determination of the prime rate on the first day of the year may be used; and
    2. One percent.
  2. The rate found in subsection 1 may not be compounded.
  3. The adjustment of the fair market value of total gross assets continues as provided in subsection 1 until the date the adjusted value is first exceeded by the cumulative amounts of successor asbestos-related liabilities paid or committed to be paid by or on behalf of the innocent successor corporation or a predecessor or by or on behalf of a transferor after the time of the merger or consolidation for which the fair market value of total gross assets is determined.
  4. An adjustment of the fair market value of total gross assets may not be applied to any liability insurance that may be included in the definition of total gross assets by subsection 3 of section 32-46-04.

Source:

S.L. 2009, ch. 290, § 1.

32-46-06. Scope of chapter.

This chapter applies to all asbestos claims filed against an innocent successor on or after August 1, 2009. This chapter also applies to any pending asbestos claims against an innocent successor in which trial has not commenced as of the effective date, except that any provisions of these sections which would be unconstitutional if applied retroactively must be applied prospectively.

Source:

S.L. 2009, ch. 290, § 1.

CHAPTER 32-46.1 Asbestos Bankruptcy Trust Transparency

32-46.1-01. Definitions.

For purposes of this chapter, unless the context otherwise requires:

  1. “Asbestos” means chrysotile, amosite, crocidolite, tremolite asbsestos, anthophyllite asbestos, actinolite asbestos, asbestiform winchite, asbestiform richterite, asbestiform amphibole minerals, and any of these minerals that have been chemically treated or altered, including all minerals defined as asbestos in title 29, Code of Federal Regulations, part 1910.
  2. “Asbestos action” means a claim for damages or other civil or equitable relief presented in a civil action arising out of, based on, or related to the health effects of exposure to asbestos, including loss of consortium, wrongful death, mental or emotional injury, risk or fear of disease or other injury, costs of medical monitoring or surveillance, and any other derivative claim made by or on behalf of an individual exposed to asbestos or a representative, spouse, parent, child, or other relative of the exposed individual. This term does not include a claim for compensatory benefits pursuant to workers’ compensation or veterans’ benefits.
  3. “Asbestos trust” means a government-approved or court-approved trust, qualified settlement fund, compensation fund, or claims facility created as a result of an administrative or legal action, a court-approved bankruptcy, or pursuant to 11 U.S.C. 524(g), 11 U.S.C. 1121(a), or other applicable provision of law intended to provide compensation to claimants arising out of, based on, or related to the health effects of exposure to asbestos.
  4. “Plaintiff” means an individual asserting an asbestos action, a decedent if the action is brought on behalf of an estate, and a parent or guardian if the action is brought on behalf of a minor or legally incapacitated individual.
  5. “Trust claims materials” means a final executed proof of claim and all other documents and information related to a claim against an asbestos trust, including claims forms and supplementary materials, affidavits, depositions, trial testimony, work history, medical and health records, documents reflecting the status of a claim against an asbestos trust, and if the trust claim has settled, all documents relating to the settlement of the trust claim.
  6. “Trust governance documents” means all documents that relate to eligibility and payment levels, including claims payment matrices, trust distribution procedures, or plans for reorganization for an asbestos trust.
  7. “Veterans’ benefits” means a program administered by the veterans’ administration under 38 U.S.C. 8.
  8. “Workers’ compensation” means a program administered by the United States or a state to provide benefits, funded by a responsible employer or its insurance carrier, for occupational diseases, injuries, disability, or death caused by an individual’s occupation. The term does not include 45 U.S.C. 51.

Source:

S.L. 2017, ch. 236, § 1, eff August 1, 2017.

32-46.1-02. Required disclosures by plaintiff.

  1. Within thirty days after an asbestos action is filed, the plaintiff shall:
    1. Provide the court and parties with a sworn statement signed by the plaintiff and plaintiff’s counsel indicating an investigation of all asbestos trust claims has been conducted and all asbestos trust claims that could be made by the plaintiff have been filed. The sworn statement must indicate whether a request has been made to defer, delay, suspend, or toll any asbestos trust claim and provide the disposition of each asbestos trust claim.
    2. Provide parties with all trust claims materials, including materials related to the conditions other than those that are the basis for the asbestos action and any materials from all law firms connected to the plaintiff in relation to the plaintiff’s exposure to asbestos.
    3. Produce all available trust claims materials submitted to any asbestos trusts by other individuals if the plaintiff’s asbestos trust claim is based on exposure to asbestos through those individuals.
  2. The plaintiff shall supplement the information and materials required under this section within thirty days after supplementing an existing asbestos trust claim, receiving additional information or materials related to an asbestos trust claim, or filing an additional asbestos trust claim.
  3. The court may dismiss an asbestos action if the plaintiff fails to comply with this section.
  4. An asbestos action may not proceed to trial until at least one hundred eighty days after the requirements of this section have been met.

Source:

S.L. 2017, ch. 236, § 1, eff August 1, 2017.

32-46.1-03. Identification of additional or alternative asbestos trust by defendant.

  1. A defendant may file a motion requesting a stay of the proceedings by the later of the seventy-fifth day before the trial is set to commence or the fifteenth day after the defendant first obtains information supporting additional trust claims by the plaintiff. The defendant shall produce or describe the documentation the defendant possesses or of which the defendant is aware in support of the motion. Before filing the motion, the defendant shall meet and confer with the plaintiff to discuss why the defendant believes the plaintiff has an additional trust claim.
  2. Within ten days of receiving the defendant’s motion, the plaintiff shall:
    1. File the asbestos trust claims;
    2. File a written response with the court stating why insufficient evidence exists for the plaintiff to file the asbestos trust claims; or
    3. File a written response with the court requesting a determination that the cost to file the asbestos trust claims exceed the plaintiff’s reasonably anticipated recovery.
  3. If the court determines there is a sufficient basis for the plaintiff to file an asbestos trust claim, the court shall stay the asbestos action until the plaintiff files the asbestos trust claim and produces all related trust claims materials.
  4. If the court determines the cost of submitting an asbestos trust claim exceeds the plaintiff’s reasonably anticipated recovery, the court shall stay the asbestos action until the plaintiff files with the court and provides all parties with a verified statement of the plaintiff’s history of exposure, usage, or other connection to asbestos covered by the identified asbestos trust.
  5. The court may not schedule the asbestos action for trial until at least sixty days after the plaintiff files the documentation required under this section.

Source:

S.L. 2017, ch. 236, § 1, eff August 1, 2017.

32-46.1-04. Discovery — Use of materials.

  1. Trust claims materials and trust governance documents are presumed to be relevant and authentic and are admissible in evidence. A claim of privilege does not apply to any trust claims materials or trust governance documents.
  2. A defendant in an asbestos action may seek discovery from an asbestos trust. The plaintiff may not claim privilege to bar discovery and shall provide consent or other expression of permission as required by the asbestos trust to release information and materials sought by the defendant.
  3. Trust claims materials sufficient to entitle a claim to consideration for payment under the applicable trust governance documents may be sufficient to support a jury finding that the plaintiff may have been exposed to products for which the trust was established to provide compensation and that such exposure may be a substantial contributing factor in causing the plaintiff’s injury.

Source:

S.L. 2017, ch. 236, § 1, eff August 1, 2017.

32-46.1-05. Trust record.

At least thirty days before trial, the plaintiff shall provide the court with documentation identifying each claim the plaintiff has made against an asbestos trust. The court shall enter the documentation into the record.

Source:

S.L. 2017, ch. 236, § 1, eff August 1, 2017.

32-46.1-06. Failure to provide information — Sanctions.

  1. The court may impose any sanction provided by court rule or law upon the motion of a defendant or judgment debtor seeking sanctions or other relief for failure to comply with the requirements of this chapter.
  2. If the plaintiff files an asbestos trust claim after the plaintiff obtains a judgment and the asbestos trust was in existence at the time of the judgment, the trial court upon motion by a defendant or judgment debtor seeking sanctions or other relief, has jurisdiction to adjust the judgment by the amount of any subsequent asbestos trust payments obtained by the plaintiff and to order additional relief to the parties.
  3. A defendant or judgment debtor may file a motion under this section within one year after the court enters a final judgment.

Source:

S.L. 2017, ch. 236, § 1, eff August 1, 2017.

CHAPTER 32-46.2 Asbestos Civil Actions

Source:

S.L. 2021, HB1207, § 2, eff August 1, 2021.

32-46.2-01. Definitions.

In this chapter, unless the context otherwise requires:

  1. “AMA guides” means the “Guides to the Evaluation of Permanent Impairment”, American medical association, (6th edition).
  2. “Asbestos action” means the same as that term is defined in section 32-46.1-01.
  3. “Asbestosis” means bilateral diffuse interstitial fibrosis of the lungs caused by inhalation of asbestos fibers.
  4. “Board-certified in internal medicine” means a licensed physician who is certified by the American board of internal medicine or the American osteopathic board of internal medicine.
  5. “Board-certified in occupational medicine” means a licensed physician who is certified in the specialty of occupational medicine by the American board of preventive medicine or the specialty of occupational/environmental medicine by the American osteopathic board of preventive medicine.
  6. “Board-certified in oncology” means a licensed physician who is certified in the subspecialty of medical oncology by the American board of internal medicine or the American osteopathic board of internal medicine.
  7. “Board-certified in pathology” means a licensed physician who holds primary certification in anatomic pathology or clinical pathology from the American board of pathology or the American osteopathic board of pathology and whose professional practice is principally in the field of pathology and involves regular evaluation of pathology materials obtained from surgical or postmortem specimens.
  8. “Board-certified in pulmonary medicine” means a licensed physician who is certified in the specialty of pulmonary medicine by the American board of internal medicine or the American osteopathic board of internal medicine.
  9. “Certified B-reader” means an individual who is certified as a national institute for occupational safety and health final or B-reader of x-rays under title 42, Code of Federal Regulations, part 37.51(b).
  10. “Chest x-ray” means chest films taken in accordance with all applicable state and federal regulatory standards and taken in the posterior-anterior view.
  11. “DLCO” means diffusing capacity of the lung for carbon monoxide, which is the measurement of carbon monoxide transfer from inspired gas to pulmonary capillary blood.
  12. “Exposed individual” means an individual whose exposure to asbestos is the basis for an asbestos action.
  13. “FEV1” means forced expiratory volume in the first second, which is the maximal volume of air expelled in one second during performance of simple spirometric tests.
  14. “FEV1/FVC” means the ratio between the actual values for FEV1 over FVC.
  15. “FVC” means forced vital capacity, which is the maximal volume of air expired with maximum effort from a position of full inspiration.
  16. “ILO system” and “ILO scale” mean the radiological ratings and system for the classification of chest x-rays of the international labour office provided in “Guidelines for the Use of ILO International Classification of Radiographs of Pneumoconioses” (2011).
  17. “Nonmalignant condition” means any condition that may be caused by asbestos other than a diagnosed cancer.
  18. “Official statements of the American thoracic society” means the lung function testing standards set forth in the technical standards of the American thoracic society, including “Standardization of Spirometry” (2019), “Standardisation of the Measurement of Lung Volumes” (2005), “Standards for Single-breath Carbon Monoxide Uptake in the Lung” (2017), and “Interpretive Strategies for Lung Function Tests” (2005).
  19. “Pathological evidence of asbestosis” means a statement by a board-certified pathologist that more than one representative section of lung tissue uninvolved with any other disease process demonstrates a pattern of peribronchiolar or parenchymal scarring in the presence of characteristic asbestos bodies graded 1(B) or higher under the criteria published in “Asbestos-Associated Diseases”, 106 Archive of Pathology and Laboratory Medicine 11, Appendix 3 (October 8, 1982).
  20. “Plaintiff” means the same as that term is defined in section 32-46.1-01.
  21. “Plethysmography” means the test for determining lung volume in which the exposed individual is enclosed in a chamber equipped to measure pressure, flow, or volume change.
  22. “Predicted lower limit of normal” means the test value that is the calculated standard convention lying at the fifth percentile, below the upper ninety-five percent of the reference population, based on age, height, and gender, according to the recommendations by the American thoracic society and as referenced in the AMA guides.
  23. “Product liability action” means the same as defined in section 28-01.3-01 .
  24. “Pulmonary function test” means spirometry, lung volume testing, and diffusion capacity testing, including appropriate measurements, quality control data, and graphs, performed in accordance with the methods of calibration and techniques provided in the AMA guides and all standards provided in the official statements of the American thoracic society.
  25. “Qualified physician” means a licensed physician who is board-certified in internal medicine, pathology, pulmonary medicine, occupational medicine, or oncology, as may be appropriate to the diagnostic specialty in question, and who:
    1. Conducted a physical examination of the exposed individual and has taken a detailed occupational, exposure, medical, smoking, and social history from the exposed individual, or if the exposed individual is deceased, has reviewed the pathology material and has taken a detailed history from the individual most knowledgeable about the information forming the basis of the asbestos action;
    2. Treated or is treating the exposed individual, and has a doctor-patient relationship with the exposed individual at the time of the physical examination, or in the case of a board-certified pathologist, examined tissue samples or pathological slides of the exposed individual at the request of the treating physician;
    3. Has not relied on any examinations, tests, radiographs, reports, or opinions of any doctor, clinic, laboratory, or testing company that performed an examination, test, radiograph, or screening of the exposed individual in violation of any law, regulation, licensing requirement, or medical code of practice of the state in which the examination, test, or screening was conducted; and
    4. Prepared or directly supervised the preparation and final review of any medical report under this chapter.
  26. “Radiological evidence of asbestosis” means a quality 1 chest x-ray under the ILO system, or a quality 2 chest x-ray in a death case when no pathology or quality 1 chest x-ray is available, showing bilateral small, irregular opacities (s, t, or u) occurring primarily in the lower lung zones graded by a certified B-reader as at least 1/1 on the ILO scale.
  27. “Radiological evidence of diffuse bilateral pleural thickening” means a quality 1 chest x-ray under the ILO system, or a quality chest x-ray in a death case when no pathology or quality 1 chest x-ray is available, showing diffuse bilateral pleural thickening of at least b2 on the ILO scale and blunting of at least one costophrenic angle as classified by a certified B-reader.
  28. “Spirometry” means a test of air capacity of the lung through a spirometer to measure the volume of air inspired and expired.
  29. “Supporting test results” means B-reading and B-reader reports, reports of x-ray examinations, diagnostic imaging of the chest, pathology reports, pulmonary function tests, and all other tests reviewed by the diagnosing physician or a qualified physician in reaching the physician’s conclusions.
  30. “Timed gas dilution” means a method for measuring total lung capacity in which the subject breathes into a spirometer containing a known concentration of an inert and insoluble gas for a specific time, and the concentration of that inert and insoluble gas in the lung is compared to the concentration of that type of gas in the spirometer.
  31. “Total lung capacity” means the volume of gas contained in the lungs at the end of a maximal inspiration.

Source:

S.L. 2021, ch. 262, § 2, eff August 1, 2021.

Note.

Section 3 of chapter 262, S.L. 2021, provides, “ APPLICATION. This Act applies to all asbestos claims filed on or after August 1, 2021.”

32-46.2-02. Sworn information form requirement for asbestos action.

  1. In addition to any requirements for asbestos actions under chapter 32-46.1, a plaintiff in an asbestos action shall file, within forty-five days after any complaint is filed in an asbestos action, a sworn information form signed by the plaintiff and plaintiff’s counsel specifying the evidence that provides the basis for each claim against each defendant. The sworn information form must include the following with specificity:
    1. The name, address, date of birth, marital status, occupation, smoking history, current and past worksites, and current and past employers of the exposed individual, and any person through whom the exposed person was exposed to asbestos;
    2. Each individual through whom the exposed individual was exposed to asbestos and the exposed individual’s relationship to each individual;
    3. Each asbestos-containing product to which the individual was exposed and each physical location at which the exposed individual was exposed, or if the plaintiff was exposed through another individual, to which that other individual was exposed;
    4. The specific location and manner of each exposure, including for any individual through whom the exposed individual was exposed to asbestos;
    5. The beginning and ending dates of each exposure, the frequency and length of each exposure, and the proximity of the asbestos-containing product or its use to the exposed person and any person through whom the exposed person was exposed to asbestos;
    6. The identity of the manufacturer or seller of the specific asbestos product for each exposure;
    7. The specific asbestos-related disease claimed to exist; and
    8. Any supporting documentation relating to the information required under this section.
  2. The plaintiff has a continuing duty to supplement the information required to be disclosed in subsection 1.
  3. The court shall dismiss the asbestos action without prejudice as to any defendant whose product or premises is not identified in the required disclosures in subsection 1.
  4. The court shall dismiss the asbestos action without prejudice as to all defendants if the plaintiff and plaintiff’s counsel fail to comply with this section.

Source:

S.L. 2021, ch. 262, § 2, eff August 1, 2021.

Note.

Section 3 of chapter 262, S.L. 2021, provides, “ APPLICATION. This Act applies to all asbestos claims filed on or after August 1, 2021.”

32-46.2-03. Requirements for asbestos action.

  1. In addition to any requirements for asbestos actions under chapter 32-46.1 and the required sworn information form required by section 32-46.2-02, a plaintiff in an asbestos action shall include with any complaint a detailed narrative medical report, signed by a qualified physician and accompanied by supporting test results, which constitute prima facie evidence the exposed individual meets the requirements of this chapter. The report may not be prepared by a lawyer or other individual working for or on behalf of a lawyer or law firm.
  2. A defendant shall have a reasonable opportunity to challenge the adequacy of the prima facie evidence. The court shall dismiss the action without prejudice if the plaintiff fails to comply with the requirements of this section or fails to make the prima facie showing required by this section.
  3. Until a court enters an order determining the exposed individual has established prima facie evidence of impairment, an asbestos action is not subject to discovery, except discovery related to establishing or challenging the prima facie evidence.

Source:

S.L. 2021, ch. 262, § 2, eff August 1, 2021.

Note.

Section 3 of chapter 262, S.L. 2021, provides, “ APPLICATION. This Act applies to all asbestos claims filed on or after August 1, 2021.”

32-46.2-04. Elements of proof for asbestos action involving nonmalignant conditions.

An asbestos action related to an alleged nonmalignant asbestos-related condition may not be brought or maintained in the absence of prima facie evidence the exposed individual has a physical impairment for which asbestos exposure was a substantial contributing factor. The prima facie showing must be made as to each defendant and include a detailed narrative medical report signed by a qualified physician that includes the following:

  1. Radiological or pathological evidence of asbestosis or radiological evidence of diffuse bilateral pleural thickening or a high-resolution computed tomography scan showing evidence of asbestosis or diffuse pleural thickening;
  2. A detailed occupational and exposure history from the exposed individual or, if the individual is deceased, from the individual most knowledgeable about the exposures that form the basis of the action, including identification of all of the exposed individual’s places of employment and exposures to airborne contaminants and whether each place of employment involved exposures to airborne contaminants, including asbestos fibers or other disease-causing dusts, that may cause pulmonary impairment, and the nature, duration, and level of any exposure;
  3. A detailed medical, social, and smoking history from the exposed individual or, if the individual is deceased, from the individual most knowledgeable, including a thorough review of the past and present medical problems of the exposed individual;
  4. Evidence verifying at least fifteen years have elapsed between the exposed individual’s date of first exposure to asbestos and the date of diagnosis;
  5. Evidence from an individual medical examination and pulmonary function testing of the exposed individual or, if the exposed individual is deceased, based upon the individual’s medical records, the exposed individual has or the deceased individual had a permanent respiratory impairment rating of at least class 2 as defined by the AMA guides or reported significant changes year to year in lung function for FVC, FEV1, or DLCO as defined by the American thoracic society’s “Interpretative Strategies for Lung Function Tests”, 26 European Respiratory Journal 948-68, 961-62, table 12 (2005);
  6. Evidence that asbestosis or diffuse bilateral pleural thickening, rather than chronic obstructive pulmonary disease, is a substantial contributing factor to the exposed individual’s physical impairment, based on a determination the exposed individual has any of the following:
    1. FVC below the predicted lower limit of normal and FEV1/FVC ratio (using twenty actual values) at or above the predicted lower limit of normal;
    2. Total lung capacity, by plethysmography or timed gas dilution, below the predicted lower limit of normal; or
    3. A chest x-ray showing bilateral small, irregular opacities (s, t, or u) graded by a twenty-four certified B-reader as at least 2/1 on the ILO scale; and
  7. A statement that the qualified physician signing the detailed narrative medical report has concluded exposure to asbestos was a substantial contributing factor to the exposed individual’s physical impairment and not more probably the result of other causes. An opinion that the medical findings and impairment are consistent with or compatible with exposure to asbestos, or words to that effect, does not satisfy this subsection.

Source:

S.L. 2021, ch. 262, § 2, eff August 1, 2021.

Note.

Section 3 of chapter 262, S.L. 2021, provides, " APPLICATION. This Act applies to all asbestos claims filed on or after August 1, 2021."

32-46.2-05. Elements of proof for asbestos action involving malignant conditions.

  1. An asbestos action related to an alleged asbestos-related malignant condition may not be brought or maintained in the absence of prima facie evidence that the exposed individual has a malignant condition for which asbestos exposure was a substantial contributing factor. The prima facie showing must be made as to each defendant and include a detailed narrative medical report signed by a qualified physician that includes all of the following:
    1. A diagnosis that the exposed person has a malignant asbestos-related condition; and
    2. A statement that exposure to asbestos was a substantial contributing factor to the exposed individual’s malignant condition and not more probably the result of other causes, and a detailed explanation for that opinion. An opinion that the malignant condition is consistent with or compatible with exposure to asbestos, or words to that effect, does not satisfy this subdivision.
  2. The court shall hold an evidentiary hearing and determine if the exposed person has established a prima facie showing of cancer to which exposure to asbestos was a substantial contributing factor.

Source:

S.L. 2021, ch. 262, § 2, eff August 1, 2021.

Noted.

Section 3 of chapter 262, S.L. 2021, provides, “ APPLICATION. This Act applies to all asbestos claims filed on or after August 1, 2021.”

32-46.2-06. Evidence of physical impairment — Procedures — Limitation.

  1. Evidence relating to the prima facie showings required under this chapter does not create a presumption the exposed individual has an asbestos-related impairment and is not conclusive as to the liability of any defendant.
  2. Evidence may not be offered at trial and the jury may not be informed of:
    1. The grant or denial of a motion to dismiss an asbestos action under this chapter; or
    2. The provisions of this chapter with respect to what constitutes a prima facie showing of asbestos impairment.
  3. Evidence relating to physical impairment offered in an asbestos action governed by this chapter:
    1. Must comply with the quality controls, equipment requirements, methods of calibration, and techniques set forth in the AMA guides and all standards set forth in the official statements of the American thoracic society; and
    2. May not be obtained under the condition the plaintiff or exposed individual retains the legal services of an attorney or law firm.
  4. In the absence of consent from all parties, a court may consolidate for trial only asbestos actions relating to the exposed individual and members of that individual’s household.
  5. A product liability defendant in an asbestos action may not be liable for exposures from a later-added asbestos-containing product made or sold by a third party.

Source:

S.L. 2021, ch. 262, § 2, eff August 1, 2021.

Note.

Section 3 of chapter 262, S.L. 2021, provides, “ APPLICATION. This Act applies to all asbestos claims filed on or after August 1, 2021.”

32-46.2-07. Statute of limitations.

  1. The period of limitations for an asbestos action that is not barred as of the effective date of this chapter may not accrue, nor may the running of limitations commence, before the earlier of the date:
    1. The exposed individual received a medical diagnosis of an asbestos-related impairment;
    2. The exposed individual discovered facts that would have led a reasonable individual to obtain a medical diagnosis with respect to the existence of an asbestos-related impairment; or
    3. The date of death of the exposed individual having an asbestos-related impairment.
  2. This section does not revive or extend limitations with respect to any claim for asbestos-related impairment that was time-barred on August 1, 2021.

Source:

S.L. 2021, ch. 262, § 2, eff August 1, 2021.

Note.

Section 3 of chapter 262, S.L. 2021, provides, “ APPLICATION. This Act applies to all asbestos claims filed on or after August 1, 2021.”

CHAPTER 32-47 Landowner Immunity for Trespasser Injury

32-47-01. Duty of care to trespasser.

A possessor of land, including an owner, lessee, or other occupant, does not owe a duty of care to a trespasser and is not subject to liability for any injury to a trespasser.

Source:

S.L. 2011, ch. 248, § 1.

Effective Date.

This chapter became effective August 1, 2011.

32-47-02. Exceptions to land possessor immunity.

    1. Notwithstanding 32-47-01, a possessor of land may be subject to liability for physical injury or death to a trespasser in the following situations:
      1. A land possessor has a duty not to harm the trespasser in a willful and wanton manner, except as permitted under section 12.1-05-06, 12.1-05-07, 12.1-05-07.1, or 12.1-05-07.2;
      2. A land possessor that knows of the trespasser’s presence on the premises has a duty to exercise ordinary care to avoid injuring that trespasser; and
      3. A land possessor may be subject to liability for physical injury or death to a child trespasser resulting from an artificial condition on the land if:
        1. The possessor knew or had reason to know that children were likely to trespass at the location of the condition;
        2. The condition is one the possessor knew or reasonably should have known involved an unreasonable risk of death or serious bodily harm to children;
        3. The injured child did not discover the condition or realize the risk involved in the condition or coming within the area made dangerous by it;
        4. The utility to the possessor of maintaining the condition and the burden of eliminating the danger were slight as compared with the risk to the child involved; and
        5. The land possessor failed to exercise reasonable care to eliminate the danger or otherwise protect the injured child.
    2. For purposes of this subsection, “artificial condition” means a structure or other manmade condition and does not include living animals.
  1. This section does not affect chapter 53-08.
  2. This section does not create or increase the liability of any person or entity.

Source:

S.L. 2011, ch. 248, § 2.

CHAPTER 32-48 Business Immunity from COVID-19 Liability Claims

32-48-01. Definitions. [Effective through August 31, 2022]

As used in this chapter:

  1. “COVID-19” means:
    1. Severe acute respiratory syndrome coronavirus 2 identified as SARS-CoV-2 and any mutation or viral fragments of SARS-CoV-2; and
    2. Any disease or condition caused by severe acute respiratory syndrome coronavirus 2 identified as SARS-CoV-2.
  2. “Disinfecting or cleaning supplies” includes hand sanitizers, disinfectants, disinfecting sprays, and disinfecting wipes.
  3. “Health care facility” means any facility in which health care services are provided and includes a hospital, special care unit, skilled nursing facility, intermediate care facility, basic care facility, assisted living facility, ambulatory surgical center, freestanding emergency department, rural primary care hospital, critical access hospital, inpatient hospice facility, including a clinic not located on a hospital’s primary campus, health maintenance organization, home health agency, any field hospital, modular field-treatment facility, or other alternative care facility designated by the state department of health for temporary use related to the COVID-19 state of emergency, and a diagnostic, examination, treatment, imaging, or rehabilitation center.
  4. “Health care provider” means an individual or entity licensed, certified, or otherwise authorized to provide health care services in this state whether paid or unpaid. The term includes:
    1. The employer or agent of a health care provider that provides or arranges a health care service;
    2. A person engaged in telemedicine or telehealth; and
    3. A volunteer or military member who is approved by or works under the direction of the state department of health and who provides health care services in response to the COVID-19 state of emergency.
  5. “Intentional” means when engaging in the conduct, it is the person’s purpose to do so.
  6. “Personal protective equipment” means equipment worn to prevent or minimize exposure to hazards that cause injuries or illnesses.
  7. “Premises” means any real property, any appurtenant building or structure, and any vehicle serving a residential, agricultural, commercial, industrial, educational, religious, governmental, cultural, charitable, or health care purpose.
  8. “Qualified product” means:
    1. Personal protective equipment used to protect the wearer from COVID-19 or to prevent the spread of COVID-19.
    2. A medical device or equipment used to treat COVID-19, including a medical device or equipment used or modified for an unapproved use to treat COVID-19 or to prevent the spread of COVID-19.
    3. A medical device or equipment used outside its normal use to treat COVID-19 or to prevent the spread of COVID-19.
    4. Medication or treatment used to treat or prevent COVID-19, including medication or treatment prescribed or dispensed for off-label use to treat or prevent COVID-19.
    5. A test to diagnose or determine immunity to COVID-19.
  9. “Reckless” means conduct engaged in a conscious and clearly unjustifiable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct.
  10. “Unapproved” means not authorized, accredited, or certified by a federal or state agency for any other use, purpose, or design.
  11. “Willful” means the conduct is engaged in intentionally, knowingly, or recklessly.

Source:

S.L. 2021, ch. 263, § 1, eff July 1, 2021.

Note.

Section 2 of chapter 263, S.L. 2021, provides, “ RETROACTIVE APPLICATION. This Act applies retroactively to January 1, 2020.”

32-48-01. Definitions. [Effective September 1, 2022]

As used in this chapter:

  1. “COVID-19” means:
    1. Severe acute respiratory syndrome coronavirus 2 identified as SARS-CoV-2 and any mutation or viral fragments of SARS-CoV-2; and
    2. Any disease or condition caused by severe acute respiratory syndrome coronavirus 2 identified as SARS-CoV-2.
  2. “Disinfecting or cleaning supplies” includes hand sanitizers, disinfectants, disinfecting sprays, and disinfecting wipes.
  3. “Health care facility” means any facility in which health care services are provided and includes a hospital, special care unit, skilled nursing facility, intermediate care facility, basic care facility, assisted living facility, ambulatory surgical center, freestanding emergency department, rural primary care hospital, critical access hospital, inpatient hospice facility, including a clinic not located on a hospital’s primary campus, health maintenance organization, home health agency, any field hospital, modular field-treatment facility, or other alternative care facility designated by the department of health and human services for temporary use related to the COVID-19 state of emergency, and a diagnostic, examination, treatment, imaging, or rehabilitation center.
  4. “Health care provider” means an individual or entity licensed, certified, or otherwise authorized to provide health care services in this state whether paid or unpaid. The term includes:
    1. The employer or agent of a health care provider that provides or arranges a health care service;
    2. A person engaged in telemedicine or telehealth; and
    3. A volunteer or military member who is approved by or works under the direction of the department of health and human services and who provides health care services in response to the COVID-19 state of emergency.
  5. “Intentional” means when engaging in the conduct, it is the person’s purpose to do so.
  6. “Personal protective equipment” means equipment worn to prevent or minimize exposure to hazards that cause injuries or illnesses.
  7. “Premises” means any real property, any appurtenant building or structure, and any vehicle serving a residential, agricultural, commercial, industrial, educational, religious, governmental, cultural, charitable, or health care purpose.
  8. “Qualified product” means:
    1. Personal protective equipment used to protect the wearer from COVID-19 or to prevent the spread of COVID-19.
    2. A medical device or equipment used to treat COVID-19, including a medical device or equipment used or modified for an unapproved use to treat COVID-19 or to prevent the spread of COVID-19.
    3. A medical device or equipment used outside its normal use to treat COVID-19 or to prevent the spread of COVID-19.
    4. Medication or treatment used to treat or prevent COVID-19, including medication or treatment prescribed or dispensed for off-label use to treat or prevent COVID-19.
    5. A test to diagnose or determine immunity to COVID-19.
  9. “Reckless” means conduct engaged in a conscious and clearly unjustifiable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct.
  10. “Unapproved” means not authorized, accredited, or certified by a federal or state agency for any other use, purpose, or design.
  11. “Willful” means the conduct is engaged in intentionally, knowingly, or recklessly.

Source:

S.L. 2021, ch. 263, § 1, eff July 1, 2021; 2021, ch. 263, § 1, eff September 1, 2022.

32-48-02. Actual injury requirement in civil actions alleging COVID–19 exposure.

A person may not bring or maintain a civil action alleging exposure or potential exposure to COVID-19 unless the civil action involves an act intended to cause harm or an act that constitutes actual malice.

Source:

S.L. 2021, ch. 263, § 1, eff July 1, 2021.

Note.

Section 2 of chapter 263, S.L. 2021, provides, “RETROACTIVE APPLICATION. This Act applies retroactively to January 1, 2020.”

32-48-03. Premises owner's duty of care – Limited liability.

A person that possesses, owns, or is in control of premises, including a tenant, lessee, or occupant of a premises, which directly or indirectly invites or permits an individual onto the premises is immune from civil liability for any act or omission resulting in damage or injury sustained from the individual’s exposure to COVID-19, unless the person that possesses, owns, or is in control of the premises:

  1. Exposes the individual to COVID-19 through an act that constitutes actual malice; or
  2. Intentionally exposes the individual to COVID-19 with the intent to cause harm.

Source:

S.L. 2021, ch. 263, § 1, eff July 1, 2021.

Note.

Section 2 of chapter 263, S.L. 2021, provides, “RETROACTIVE APPLICATION. This Act applies retroactively to January 1, 2020.”

32-48-04. Safe harbor for compliance with statutes, regulations, or executive orders.

A person is immune from civil liability for an act or omission resulting in damage or injury sustained from exposure or potential exposure to COVID - 19 if the act or omission was in substantial compliance or was consistent with a federal or state statute, regulation, or order related to COVID - 19 which was applicable to the person or activity at issue at the time of the alleged exposure or potential exposure.

Source:

S.L. 2021, ch. 263, § 1, eff July 1, 2021.

Note.

Section 2 of chapter 263, S.L. 2021, provides, “ RETROACTIVE APPLICATION. This Act applies retroactively to January 1, 2020.”

32-48-05. Liability of health care providers and health care facilities.

  1. A health care provider or health care facility is immune from civil liability for any act or omission in response to COVID-19 that causes or contributes, directly or indirectly, to the death or injury of an individual. The immunity provided under this subsection includes:
    1. Injury or death resulting from screening, assessing, diagnosing, caring for, triaging, or treating an individual with a suspected or confirmed case of COVID-19.
    2. Prescribing, administering, or dispensing a pharmaceutical for off-label use to treat or prevent a suspected or confirmed case of COVID-19.
    3. Prescribing, administering, or dispensing a pharmaceutical for off-label use to treat or prevent a suspected or confirmed case of COVID-19.
      1. Delaying or canceling a nonurgent or elective dental, medical, or surgical procedure; delaying the diagnosis of an individual; or altering the treatment of an individual.
      2. Conducting a test or providing treatment to an individual outside the premises of a health care facility.
      3. An act or omission undertaken by a health care provider or a health care facility because of a lack of staff, facility, medical device, treatment, equipment, or other resource, attributable to COVID-19 which renders the health care provider or health care facility unable to provide the level or manner of care to an individual which otherwise would have been required in the absence of COVID-19.
      4. An act or omission undertaken by a health care provider or a health care facility relating to use or nonuse of personal protective equipment.
      5. An act or omission undertaken by a health care provider or a health care facility relating to the administration, delivery, distribution, allocation, prioritization, or dispensing of scarce resources among individuals such as medical devices, treatment, and equipment.

(2) The immunity provided under subsection 1 does not apply to an act or omission that constitutes:

a. Willful and wanton misconduct;

b. Reckless infliction of harm; or

c. Intentional infliction of harm.

Source:

S.L. 2021, ch. 263, § 1, eff July 1, 2021.

Note.

Section 2 of chapter 263, S.L. 2021, provides, “ RETROACTIVE APPLICATION. This Act applies retroactively to January 1, 2020.”

32-48-06. Supplies, equipment, and products designed, manufactured, labeled, sold, distributed, and donated in response to COVID-19.

  1. A person that designs, manufactures, labels, sells, distributes, or donates disinfecting or cleaning supplies, personal protective equipment, or a qualified product in response to COVID-19 is immune from civil liability for any personal injury, death, or property damage caused by or resulting from the design, manufacturing, labeling, selling, distributing, or donating of the disinfecting or cleaning supplies, personal protective equipment, or a qualified product.
  2. A person that designs, manufactures, labels, sells, distributes, or donates disinfecting or cleaning supplies, personal protective equipment, or a qualified product in response to COVID-19 is immune from civil liability for any personal injury, death, or property damage caused by or resulting from a failure to provide proper instruction or sufficient warning.
  3. The immunity provided under subsections 1 and 2 does not apply :
    1. To a person that designs, manufactures, labels, sells, distributes, or donates disinfecting or cleaning supplies, personal protective equipment, or a qualified product:
      1. With actual knowledge of a defect in the disinfecting or cleaning supplies, personal protective equipment, or a qualified product when put to the use for which the disinfecting or cleaning supplies, personal protective equipment, or a qualified product was designed, manufactured, sold, distributed, or donated; and
      2. If the person recklessly disregarded a substantial and unnecessary risk the disinfecting or cleaning supplies, personal protective equipment, or a qualified product would cause serious personal injury, death, or serious property damage; or
    2. If the person that designs, manufactures, labels, sells, distributes, or donates disinfecting or cleaning supplies, personal protective equipment, or a qualified product acts with actual malice.

Source:

S.L. 2021, ch. 263, § 1, eff July 1, 2021.

Note.

Section 2 of chapter 263, S.L. 2021, provides, “ RETROACTIVE APPLICATION. This Act applies retroactively to January 1, 2020.”

32-48-07. Construction.

This chapter may not be construed to:

  1. Create, recognize, or ratify a liability claim or cause of action.
  2. Eliminate or satisfy a required element of a liability claim or cause of action.
  3. Amend, repeal, affect, or supersede any other immunity protection that may apply under state or federal law.

Source:

S.L. 2021, ch. 263, § 1, eff July 1, 2021.

Note.

Section 2 of chapter 263, S.L. 2021, provides, “ RETROACTIVE APPLICATION. This Act applies retroactively to January 1, 2020.”

32-48-08. Exception.

This chapter does not apply to enforcement actions under chapters 50-24.8, 51-08.1, and 51-15.

Source:

S.L. 2021, ch. 263, § 1, eff July 1, 2021.

Note.

Section 2 of chapter 263, S.L. 2021, provides, “ RETROACTIVE APPLICATION. This Act applies retroactively to January 1, 2020.”