from the District Court of Cass County, East Central Judicial
District, the Honorable Steven L. Marquart, Judge.
A. Turman for plaintiff and appellant.
L. Dynes (argued) and Ronald H. McLean (on brief) for
defendant and appellee.
VandeWalle, Chief Justice.
1] Nandan, LLP appealed from a summary judgment and an order
denying its N.D.R.Civ.P. 60(b) motion for relief from
judgment, ruling that road and utility repairs were
incidental to the repair of a water and sewer system damaged
by a landslide in Fargo, and that the City of Fargo was
therefore not required to pass a resolution of necessity to
create an improvement district to fund the repairs. We
affirm, because Nandan failed to raise a genuine issue of
material fact precluding summary judgment.
2] On May 31, 2012, a landslide occurred along 32nd Street
North in Fargo near where Nandan and Border States Paving,
Inc., owned property. The landslide damaged a water main and
storm sewer; the street; and Drain No. 10, which is owned,
operated, and maintained by the Southeast Cass Water Resource
District. The road and adjacent water and sewer lines are
owned by Fargo. Fargo created an improvement district to fund
repairs to the drain, water main, and sanitary sewer systems
on a portion of the drain without adopting a resolution of
necessity. Fargo later entered into a joint powers agreement
with the District which set forth the parties'
obligations for the repairs.
3] After Border States and Nandan's protests to their
special assessments were rejected by the city, they sued
Fargo alleging the city improperly created the improvement
district because it did not adopt a resolution of necessity
and provide a right to protest. The district court granted
Fargo's N.D.R.Civ.P. 12(b)(6) motion to dismiss for
failure to state a claim upon which relief could be granted,
concluding Nandan and Border States had no right to protest
under N.D.C.C. § 40-22-06 because the city let the bids
for project construction, or under N.D.C.C. § 40-22-15
because the project constituted a water or sewer improvement
for which a resolution of necessity was not required.
4] On appeal, we affirmed the district court's decision
in part, reversed in part, and remanded for further
proceedings. See Nandan, LLP v. City of
Fargo, 2015 ND 37, 858 N.W.2d 892. We held that Fargo
was not required to adopt a resolution of necessity and
provide a right to protest under N.D.C.C. § 40-22-06
because the city bid out the project and entered into the
construction contract. Nandan, at ¶ 21.
However, we reversed the court's holding that N.D.C.C.
§ 40-22-15 did not provide a right of protest and
remanded for further proceedings, stating:
According to the statements in the exhibits attached to the
amended complaint, the improvement district included street
repairs, utilities and other items not specifically included
in the description of a water or sewer improvement under
N.D.C.C. § 40-22-01(1) (under which a resolution of
necessity would not be required under N.D.C.C. §
40-22-15). It is also unknown from the pleadings whether the
other repairs were incidental to the water and sewer repairs.
See N.D.C.C. § 40-22-01 (stating a municipality
may include items of work and materials which in its judgment
are necessary or reasonably incidental to the completion of
an improvement project). If the other repairs were incidental
to the water and sewer repairs under N.D.C.C. §
40-22-01, a resolution declaring the improvements were
necessary would not be required under N.D.C.C. §
40-22-15. If the other repairs were a type of improvement as
described in N.D.C.C. § 40-22-01(2) through (5), and
were not incidental to the water and sewer repairs, a
resolution of necessity would have been required to create
the improvement district, and Border States would have had a
right to protest the creation of the improvement district
under N.D.C.C. § 40-22-17. In viewing the pleadings in a
light most favorable to Border States, we cannot conclude
with certainty that Border States' amended complaint
fails to state a claim upon which relief can be granted. We
hold the district court erred in concluding N.D.C.C. §
40-22-15 did not provide Border States a right to protest the
creation of the improvement district. We therefore reverse
that part of the district court's judgment and remand for
In its order granting Fargo's motion to dismiss, the
district court concluded Border States did not have a right
to protest the project under N.D.C.C. § 40-22-15.
Without further analysis or explanation, the district court
apparently concluded the project constituted a sewer or water
improvement as described in N.D.C.C. § 40-22-01(1). On
remand, the district court must analyze N.D.C.C. §
40-22-01 and consider any additional evidence offered by the
parties in deciding whether the project constituted a sewer
or water improvement. Specifically, the district court must
decide whether the other repairs funded by Improvement
District No. 6237 were incidental to the water and sewer
repairs or whether they were a type of improvement described
in N.D.C.C. § 40-22-01(2) through (5).
Nandan, at ¶¶ 30-31. After our decision
was rendered, Border States stipulated to dismissal from the
5] On remand, Fargo moved for summary judgment against
Nandan, arguing the street repairs and utility work performed
were incidental to the water and sewer repairs under N.D.C.C.
§ 40-22-01. Fargo provided evidence of the costs of
various categories of repairs made during the project. Fargo
also provided affidavits from a city engineer and a District
engineer who worked on the project. Nandan argued that the
work completed on Drain No. 10 was not part of the city's
storm sewer system under N.D.C.C. § 40-22-15. The court
noted the definition of a water or sewer improvement under
N.D.C.C. § 40-22-01(1) and said:
It is undisputed that Cass County Drain 10 is part of the
City of Fargo's storm sewer system. The city directs
storm water through culverts, pipes and channels to Drain 10
through which the storm water is then directed north and east
of the Red River. In fact, Nandan concedes that Drain 10 is a
water and sewer improvement under this definition. It argues,
however, that the project at issue should not be considered a
City of Fargo project.
court further noted the issue whether the Drain No. 10
improvement project is a city project was not part of this
Court's remand, and the specific remand required only a
determination whether "the street repairs and utility
work [were] incidental to the water and sewer repairs?"
The court said:
Here, the Court concludes that there are no genuine issues of
material fact. It is undisputed that the road repairs on 32nd
Street North were incidental to the work necessary to repair
the water and sewer systems that were damaged by the
landslide. Therefore, this project qualifies as a water or
sewer improvement pursuant to N.D. Cent. Code §
40-22-15, and therefore, a resolution of necessity was not
6] Nandan moved for relief from judgment under N.D.R.Civ.P.
60(b)(6). The district court once again rejected Nandan's
argument that Drain No. 10 cannot constitute a water or sewer
project under N.D.C.C. § 40-22-01(1). The court ruled
that, under N.D.C.C. § 40-22-01(2) through (5), Drain
No. 10 "does not constitute the improvement of a street
system, improvement of boulevards, was not acquired land for
flood control, and was not land acquired for parking."
Finding no genuine issues of material fact that any ...