from the District Court of Burleigh County, South Central
Judicial District, the Honorable Gail Hagerty, Judge.
A. Swanson, Fargo, N.D., for plaintiffs and appellants.
J. Leibel, Bismarck, N.D., for defendant and appellee Lonnie
Barth. David J. Smith (argued) and Tyler J. Malm (on brief),
Bismarck, N.D., for defendant and appellee The Ridge at
Hawktree Homeowners' Association.
1] David and Virginia Ceynar appeal from a summary judgment
dismissing their breach of contract/covenant and nuisance
action against Lonnie Barth and The Ridge at Hawktree
Homeowners' Association. Because the district court did
not err in ruling that the Association's restrictive
covenants were not violated, and because Barth's actions
as a matter of law did not unreasonably interfere with the
Ceynars' use and enjoyment of their property, we affirm.
2] The Ceynars and Barth are neighbors at The Ridge at
Hawktree, a Bismarck subdivision near a golf course, and are
members of the Association. Before the Ceynars purchased
their home, Barth approached the Association with plans to
build what the parties refer to as a "pool house"
on his property. Based on the Association's restrictive
covenants, the Association's Architectural Committee
informed Barth that detached buildings were not permitted.
Barth then proposed construction of a breezeway connecting
the pool house to Barth's home. The Committee approved
the final plans in January 2014. The plans for the addition
were then submitted to the City of Bismarck, which approved
the plans and issued a building permit.
3] The Ceynars bought the house next door to Barth's
property from their daughter in June 2014. Actual
construction of the pool house began in February 2015, and
the Ceynars complained to the Association. They claimed the
pool house would block their view to the north and west
toward the Hawktree Golf Club. Members of the Association
came to the Ceynars' home to observe how the pool house
affected their property, but the Association took no action
to stop construction.
4] In July 2015, the Ceynars brought this action against
Barth and the Association alleging breach of
contract/covenant and nuisance. They claimed the pool house
violated restrictive covenants and unreasonably interfered
with the enjoyment of their property and diminished its
value. After Barth remedied a setback violation, he and the
Association moved for summary judgment dismissing the action.
In October 2016, the district court denied the motion,
concluding there were "a number of genuine issues of
material fact" precluding summary judgment. The court
also informed the parties that he would recuse himself from
the case if any of the parties objected because he knew the
Association's secretary. Barth moved for reconsideration,
and Barth and the Association requested the judge recuse
himself. A different judge was assigned to the case.
5] In December 2016, Barth and the Association filed another
summary judgment motion seeking dismissal of the action. The
district court granted the motion, concluding the pool house
did not violate any of the Association's restrictive
covenants. The court also dismissed the nuisance claim
because under N.D.C.C. § 42-01-01 "[a] nuisance
consists in unlawfully doing an act or omitting to perform a
duty, " and the "Ceynars have provided nothing to
the Court to suggest Barth's construction of the pool
house was unlawful."
6] The Ceynars argue the district court erred in granting the
second motion for summary judgment because it was an
impermissible collateral attack on the first judge's
order denying summary judgment. The Ceynars argue the second
motion for summary judgment should have been treated as a
N.D.R.Civ.P. 60(b) motion because it asked the district court
to reconsider the same question.
7] Ceynar's reliance on N.D.R.Civ.P. 60(b) is misplaced.
Rule 60(b) does not apply to interlocutory judgments and
orders. Thompson v. Goetz, 455 N.W.2d 580, 585 (N.D.
1990). "Interlocutory orders of any kind are ordinarily
subject to reconsideration and change without the
restrictions applicable to reconsideration and changes in
'final' judgments." Cumber v. Cumber,
326 N.W.2d 194, 195 (N.D. 1982). The denial of a motion for
summary judgment is an interlocutory order leaving a case
pending for trial and decides nothing, except that the
parties may proceed with the case. Herzog v. Yuill,
399 N.W.2d 287, 293 (N.D. 1987). An interlocutory order
"may be revised at any time before the entry of a
judgment adjudicating all the claims and all the parties'
rights and liabilities." N.D.R.Civ.P. 54(b). "When
a district court is convinced that it incorrectly decided a
legal question in an interlocutory ruling, the district court
may correct the decision to avoid later reversal."
Strom-Sell v. Council for Concerned Citizens, Inc.,
1999 ND 132, ¶ 12, 597 N.W.2d 414 (internal citation
8] The district court's consideration of the second
motion for summary judgment was not the result of an improper
9] The Ceynars argue the district court erred in granting
summary judgment dismissing their breach of contract/covenant
and nuisance claims.
10] In Hokanson v. Zeigler, 2017 ND 197, 900 N.W.2d
48, we explained:
Summary judgment is a procedural device for the prompt
resolution of a controversy on the merits without a trial if
there are no genuine issues of material fact or inferences
that can reasonably be drawn from undisputed facts, or if the
only issues to be resolved are questions of law. A party
moving for summary judgment has the burden of showing there
are no genuine issues of material fact and the moving party
is entitled to judgment as a matter of law. In determining
whether summary judgment was appropriately granted, we must
view the evidence in the light most favorable to the party
opposing the motion, and that party will be given the benefit
of all favorable inferences which can reasonably be drawn
from the record. On appeal, this Court decides whether the
information available to the district court precluded the
existence of a genuine issue of material fact and entitled
the moving party to judgment as a matter of law. Whether the
district court properly granted summary judgment is a
question of law which we review de novo on the entire record.
Id. at ¶ 14 (quoting Tibert v. Nodak Mut.
Ins. Co., 2012 ND 81, ¶ 8, 816 ...