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Podrygula v. Bray

Supreme Court of North Dakota

December 18, 2014

Stephan Podrygula and Psychological Services, P.C., Plaintiffs and Appellants
v.
Angela Bray and William Bray, Defendants and Appellees

Page 792

Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Richard L. Hagar, Judge.

Jeffrey S. Weikum, Madison Suite, Bismarck, ND, for plaintiffs and appellants.

Erin M. Conroy, Bottineau, ND, for defendants and appellees.

Carol Ronning Kapsner, Lisa Fair McEvers, Dale V. Sandstrom, Gerald W. VandeWalle, C.J. Opinion of the Court by Kapsner, Justice. Crothers, Justice, specially concurring.

OPINION

Page 793

Kapsner, Justice.

[¶1] Stephan Podrygula and Psychological Services, P.C. (collectively " Podrygula" ) appeal from a district court order dismissing their complaint against Angela and William Bray for fraud and negligent infliction of emotional distress. We conclude there is no genuine issue of material fact, and the district court did not err in determining the statute of limitations had run. The order to dismiss without prejudice should be modified as an order dismissing the claim with prejudice and, as modified, we affirm.

I

[¶2] On October 6, 2013, Podrygula sued the Brays seeking damages from

Page 794

fraud and negligent infliction of emotional distress based on events stemming from its employment of Angela Bray.

[¶3] Angela Bray was employed by Podrygula from October 2000 to September 2006. In the complaint, Podrygula alleged Angela Bray fraudulently diverted money from the business, and William Bray was aware of this and assisted in defrauding and concealing those activities.

[¶4] It is undisputed that on October 4, 2006, Stephan Podrygula reported his suspicions of Angela Bray's theft to law enforcement. Formal charges were brought against her in August 2007, she was convicted of theft, and was sentenced to prison. In addition, she was ordered to pay $63,197 in restitution which has since been paid in full.

[¶5] The Brays filed a motion to dismiss under N.D.R.Civ.P. 12(b)(6), arguing Podrygula failed to state a claim upon which relief could be granted because the suit was untimely, and the complaint's fraud allegations were not pleaded with particularity. Podrygula alleges, since Angela Bray's sentencing in September 2008, it was discovered she had been stealing from as far back as 2003, rather than from 2005. In addition, Podrygula alleges that in early December 2007, information was received from Stephan Podrygula's bank about thefts that had not been included in the forensic accounting report used at the criminal trial. Podrygula also claims it was discovered in 2008 Angela Bray had been impersonating Stephan Podrygula to his bank and other businesses. Finally, Podrygula claims information was received in January 2008 indicating William Bray had been double and triple reimbursed for handyman work he had performed for them. After a hearing on the motion, the district court determined October 4, 2006 was the discovery date for ...


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