Justia Real Estate & Property Law Opinion Summaries

Andrea and Kevin Martin appealed a district court judgment ordering the removal of a fence on their property after finding the fence violated restrictive covenants recorded against the property. The Martins argued the restrictive covenants did not apply to their property because they agreed to purchase the property before the covenants went into effect. They also claimed the restrictive covenants were unconscionable. Finding no reversible error, the North Dakota Supreme Court affirmed. View "Wachter Development, Inc. v. Martin, et al." on Justia Law

Brianna McLaen appealed an order granting Tyson Hall’s petition for an elective share of the Estate of Kandi Ann Hall. McLaen argued the district court erred by determining Tyson Hall could claim an elective share of Kandi Hall’s intestate estate and by deciding a warranty deed for certain real property was void. The North Dakota Supreme Court concluded a surviving spouse may claim an elective share of an intestate estate under N.D.C.C. 30.1-05-01, but the court erred in determining ownership of the real property. The matter was reversed and remanded for further proceedings. View "Estate of Hall" on Justia Law

Ronald Smithberg appealed a judgment ordering Smithberg Brothers, Inc., to purchase his interest in the family farm corporation for $169,985 and dismissing on summary judgment his other claims against the corporation and its remaining shareholders, Gary and James Smithberg. After review, the North Dakota Supreme Court concluded Ronald Smithberg raised genuine issues of material fact regarding his claims against the corporation and Gary and James Smithberg, and the district court erred in granting summary judgment dismissing those claims. The court’s valuation of Ronald Smithberg’s interest in the corporation was reversed because his interest could not be valuated until his derivative claims on behalf of the corporation were resolved. View "Smithberg v. Smithberg, et al." on Justia Law

The State of North Dakota, ex rel. the North Dakota Board of University and School Lands, and the Office of the Commissioner of University and School Lands, a/k/a the North Dakota Department of Trust Lands (“the State”) appealed a district court’s interpretation of royalty provisions of natural gas leases with Newfield Exploration Company, Newfield Production Company, and Newfield RMI LLC (“Newfield”). The State argued the district court’s interpretation of the leases improperly allowed the reduction of the royalty payments to account for expenses incurred to make the natural gas marketable. The North Dakota Supreme Court concluded the gross proceeds from which the royalty payments under the leases were calculated could not be reduced by an amount that either directly or indirectly accounted for post-production costs incurred to make the gas marketable. Therefore, the Court reversed the district court’s judgment. View "Newfield Exploration Company, et al. v. North Dakota, et al." on Justia Law

Clinton Mullin and Valrena Nelson appealed a judgment and order denying a new trial. The judgment was entered after a jury found Mullin liable for a breach of trust and awarded Richard Twete damages for the loss of use and value of real property, and after the court in equitable proceedings imposed a constructive trust requiring the return of the real property, awarded Twete monetary damages jointly and severally against Mullin and Nelson as restitution, and granted attorney fees. In 2009, Twete owned a farm near Grenora, North Dakota, and Mullin owned a farm about 100 miles away in Montana. Twete and Mullin met in the fall of 2009 when Twete hired Mullin to harvest. In September 2012, Twete executed quitclaim deeds conveying his farmland and minerals in Divide County and Williams County to Mullin. Twete also sold his farm machinery and equipment to Mullin. The transaction was documented in written contracts and deeds. In June 2013, defendants Bill Seerup and Hurley Oil Properties, Inc., purchased the minerals from Mullin for $600,000. In July 2013, Mullin executed deeds granting Nelson and Mullin a joint tenancy in the farmland, excluding minerals. In August 2014, Mullin and Nelson entered into a mortgage with defendant Farm Credit Services. In 2015, Twete commenced this action against Mullin and others, seeking among other things a monetary award and the rescission of certain real property transfers, and alleging claims for quiet title, undue influence, fraud, breach of fiduciary duty, malicious prosecution, constructive trust, breach of contract, and conversion or trespass to chattels. Twete also sought equitable relief from defendants Farm Credit, Seerup, and Hurley Oil. Mullin counterclaimed against Twete for quiet title, breach of contract, promissory estoppel, and conversion and trespass to chattel. The North Dakota Supreme Court affirmed all but the award of attorney fees: the Court could not discern under what legal authority the district court relied on to award fees. The matter was thus reversed and remanded for further proceedings. View "Twete v. Mullin, et al." on Justia Law

Brian Welken appealed a district court judgment piercing Lakeview Excavating, Inc.’s corporate veil and holding him personally responsible for money damages awarded to Eugene Taszarek, Marlys Taszarek, Trina Schilling, Steven Taszarek, and Michael Taszarek. In the spring of 2012, German Township in Dickey County, North Dakota selected Lakeview Excavating as a contractor for FEMA-funded road projects. Welken was Lakeview Excavating’s president and sole shareholder. A farmer who owned land adjacent to land owned by the Taszareks permitted Lakeview Excavating to enter his property to harvest field rock used for the road projects. However, Lakeview Excavating also took rock from the Taszareks’ property that was used in the road projects. The Taszareks sued Lakeview Excavating and Welken for intentional trespass, conversion of property, and unjust enrichment. The trespass and conversion claims were tried to a jury. The jury returned a verdict in the Taszareks’ favor, finding Lakeview Excavating was the alter ego of Welken and holding both parties liable for damages. The North Dakota Supreme Court reversed and remanded, concluding that while Welken had consented to the jury deciding the alter ego issue, the district court did not adequately instruct the jury on the alter ego doctrine. On remand the district court ordered a March 2018 bench trial on the issue of whether Lakeview Excavating was the alter ego of Welken, concluding Lakeview Excavating was the alter ego of Welken and ruled the Taszareks could recover damages from either Welken or Lakeview Excavating. Welken argued on appeal the district court erred in piercing Lakeview Excavating’s corporate veil and holding him personally liable for the Taszareks’ damages. The Supreme Court again reversed, concluding the district court did not make adequate findings of fact under N.D.R.Civ.P. 52(a), and its findings relating to piercing Lakeview Excavating’s corporate veil were inadequate to permit appellate review. View "Taszarek, et al. v. Lakeview Excavating, Inc., et al." on Justia Law

Johnston Land Company, LLC appealed dismissal of its claims against attorney Sara Sorenson and the law firm Ohnstad Twichell, P.C., and appealed the court’s decision with regard to Johnston paying their costs and attorney fees in the amount of $27,386.23. In March 2015 Sorenson, who represented beneficiaries of an estate, recorded an affidavit in Grand Forks County, North Dakota pertaining to the probate case stating certain property may be subject to future legal proceedings. In August 2017, Johnston filed a petition claiming Sorenson’s affidavit was a nonconsensual common law lien under N.D.C.C. ch. 35-35 and sought damages. In September 2017, shortly before the district court rendered its decision denying the petition, Sorenson filed a notice of lis pendens on the property on behalf of the beneficiaries in another action seeking to levy execution on the property. The district court concluded Sorenson’s March 2015 affidavit did not constitute a nonconsensual common law lien, and the North Dakota Supreme Court affirmed in part. However, the Supreme Court reversed in part and remanded, finding when Sorenson filed the affidavit in 2015, there was no action affecting title to the property. After remand, Sorenson recorded a second affidavit, which referenced her March 2015 affidavit, the September 2017 notice of lis pendens, and stated “[t]he Notice of Lis Pendens supersedes the Affidavit.” Sorenson and the law firm then moved for summary judgment dismissing items “c” through “g” in Johnston’s petition and, for the first time, requested an award of attorney fees. The district court granted the motion for summary judgment. The court concluded items “c” through “g” were rendered moot by either its previous decision that Sorenson’s first affidavit was not a nonconsensual common law lien or Sorenson’s filing of the second affidavit and the notice of lis pendens. The court also ruled summary judgment was appropriate because Johnston failed to produce any evidence or legal theory to support recovery under items “c” through “g.” Relying on its earlier ruling that Sorenson’s first affidavit was not a nonconsensual common law lien, the court also awarded Sorenson and the law firm for its costs and attorney fees. The North Dakota Supreme Court concluded the district did not err with respect to the grant of summary judgment, but reversed as to fees, finding request for costs and attorney fees came too late, and the court’s award exceeded the scope of our mandate “to rule on items ‘c’ through ‘g’ in Johnston’s petition.” View "Johnston Land Company, LLC v. Sorenson, et al." on Justia Law

Montana-Dakota Utilities Co. (“MDU”) appealed, and Lavern Behm cross-appealed a judgment dismissing MDU’s eminent domain action. Because the North Dakota Supreme Court determined the district court misapplied North Dakota law in concluding a taking was not necessary for a public use, the Supreme Court reversed and remanded for trial on eminent domain damages to be awarded to Behm. View "Montana-Dakota Utilities Co. v. Behm" on Justia Law

Willis Swenson appealed, and Kyle Mahlum cross-appealed dismissal of Swenson’s claims against Mahlum and Mahlum’s claims against Carol Hodgerson, Gerard Swenson, Lee Alan Swenson, and Mary Ann Vig (“third-party defendants”). This suit arose over the ownership and leasing of real property in Burke County, North Dakota. Willis Swenson (“Swenson”) and the third-party defendants are the children of Robert and Junietta Swenson. In 2004, Robert and Junietta conveyed the property to their children as joint tenants, reserving a life estate for themselves. In 2005, Robert died and Junietta became the sole life tenant. In 2008, Junietta leased the property to Swenson. Swenson agreed to rental payments of $20,016 per year, due in installments. In December 2009, Swenson leased the property to Mahlum for $31,022.50 per year. The Swenson-Mahlum lease became effective in March 2010 and stated it would expire in October 2019. In November 2011, Swenson signed a new lease with Junietta, beginning in 2012 and ending in 2022. The lease permitted Swenson to assign or sublet the property to any person. In July 2012, Lee Swenson was appointed guardian and conservator for Junietta. In January 2013, Lee Swenson, as guardian and conservator, leased the same property to Mahlum that Willis Swenson already was leasing to Mahlum in the December 2009 lease. The new lease required Mahlum to pay Junietta $31,122.50 each year. Junietta died in November 2013. Mary Vig, as personal representative of Junietta’s estate, informed Mahlum that future rental payments should be split and made to each of Junietta’s children in equal amounts. In January 2017, Willis and his daughter, Dayna Johnson, sued Mahlum for unpaid rent. Swenson alleged Mahlum was required to pay him under the 2009 lease, and Mahlum failed to pay any rent in 2013, 2014, 2015, and 2016. Mahlum answered and filed a third-party complaint, suing the third-party defendants for unjust enrichment. He alleged in 2013 he paid Junietta under the terms of the 2013 lease. He also alleged in 2014, 2015, and 2016 he paid rent to each of Junietta children. Mahlum claimed that the third-party defendants have been unjustly enriched, and that the third-party defendants be ordered to pay Mahlum any amounts the court finds he owed Swenson if Swenson obtained a judgment against him. After review of the circumstances of this case, the North Dakota Supreme Court determined the trial court erred in its findings, and reversed dismissal of Swenson’s breach of contract claim. On remand, the court must decide the amount of damages Swenson was entitled to recover for his breach of contract claim against Mahlum for unpaid rent in 2013, including whether Swenson failed to mitigate those damages. In addition, the court must decide Mahlum’s claims against the third-party defendants. View "Swenson, et al. v. Mahlum, et al." on Justia Law

Jared Larson appealed a district court judgment foreclosing a mortgage in favor of Heartland State Bank. Larson argued the judgment should have been reversed because Heartland’s notice before foreclosure was legally insufficient. The North Dakota Supreme Court found Larson raised an issue of defective notice during the pendency of the action after Heartland moved to amend its complaint. After reviewing the record, the Supreme Court concluded the defect did not impair Larson’s rights and was not fatal to Heartland’s foreclosure action. Rather than impair Larson’s rights, the Court found the defect benefited him: had he paid the amount due under the notice, the mortgage would have been reinstated under N.D.C.C. 32-19-28 and Heartland would have been required to start the process over to foreclose the mortgage. Because the defect did not impair Larson’s right to reinstate the mortgage, the Supreme Court concluded the district court did not err in granting Heartland’s motion to amend the complaint and motion for summary judgment. Judgment was affirmed. View "Heartland State Bank v. Larson, et al." on Justia Law