Michele L. Brandt, as Trustee of the Michele L. Brandt Revocable Trust Agreement dated January 9, 2013, Plaintiff and Appellant
City of Fargo, Cass County, North Dakota, Defendant and Appellee Karen C. Wieland, Appellant
City of Fargo, Cass County, North Dakota, Appellee
from the District Court of Cass County, East Central Judicial
District, the Honorable Thomas R. Olson, Judge, Honorable
John C. Irby, Judge.
Jonathan T. Garaas, Fargo, ND, for plaintiff and appellants.
L. Dynes, Fargo, ND, for defendant and appellee.
1] Michele L. Brandt, as Trustee of the Michele L. Brandt
Revocable Trust, appeals from an order dismissing her appeal
to the district court from the City of Fargo's resolution
of necessity. Karen Wieland appeals from a judgment
dismissing her appeal to the district court from the
City's resolution of necessity. These appeals were
consolidated for oral argument to this Court. Because of
similar dispositions, we address both appeals in this
decision. We affirm, concluding the court in each case did
not err in dismissing the appeals because no statutory basis
authorized an appeal to the district court from the
City's resolutions of necessity.
2] On December 5, 2016, the Fargo City Commission passed a
resolution of necessity for property owned by Brandt related
to construction of a flood protection project. On December
19, 2016, the City passed a similar resolution of necessity
for property owned by Wieland. Each resolution authorized the
City to proceed with all legal means to obtain the property,
including eminent domain. On December 16, 2016, Brandt
appealed the City's resolution of necessity to the
district court. On January 4, 2017, Wieland appealed the
resolution of necessity for her property to the district
3] In each case the City filed a record on appeal in the
district court and moved the court to dismiss the appeal. In
Brandt's appeal, the City moved alternatively to
consolidate Brandt's appeal with an eminent domain
proceeding that the City also commenced in December 2016. In
both appeals, Brandt and Wieland moved the district court to
strike all materials from the record that had not
specifically been placed in front of the city commission
during the respective December 2016 meetings.
4] After a February 22, 2017 hearing in Brandt's appeal,
the district court entered an order granting the City's
motion to dismiss and holding a resolution of necessity as a
predicate to eminent domain is not subject to appellate
review by the court. The court also held the City had not
acted in bad faith, with a gross abuse of discretion, or
fraudulently in passing the resolution of necessity. The
order denied Brandt's motion to strike, concluding
further consideration of the motion was moot.
5] After a March 21, 2017 hearing in Wieland's appeal
before a different judge, the district court entered an order
and judgment dismissing Wieland's appeal. The court
explained that the decision to go forward with an eminent
domain proceeding is the City's political or legislative
decision which the court could not review by appeal from
issuance of the resolution. The City commenced an eminent
domain proceeding for the Wieland property in April 2017.
6] Brandt and Wieland raise similar issues on appeal to this
Court. They argue that the district court erred in allowing
the City to file documents in the appeal, "under the
guise of complying with N.D.C.C. § 28-34-01(2), "
that were not considered by the City in making its decision;
that the court should not have considered documents not
properly filed in accordance with the law; and that the court
erred in not striking gratuitous or extraneous filings from
the record. They contend the City's resolutions of
necessity should be overturned because they are unsupported
by substantial evidence, are vague, and were passed without
adherence to the law. They further argue the district court
erred by not reviewing the resolutions on appeal as part of
the City's attempted exercise of eminent domain. The
dispositive issue in both cases, however, is whether the
parties can appeal from the City's resolutions of
necessity to the district court.
7] Generally, a district court does not have appellate
jurisdiction over a matter unless authorized by statute.
Rudnick v. City of Jamestown, 463 N.W.2d 632, 636
(N.D. 1990). "An appeal is not a matter of right but a
creature of statute, and, therefore, no right to appeal
exists unless authorized by statute." Friends of
Duane Sand v. Job Serv. N.D., 2016 ND 38, ¶ 7, 876
N.W.2d 433 (quoting Inv. Rarities, Inc. v. Bottineau Cty.
Water Res. Dist., 396 N.W.2d 746, 748 (N.D. 1986));
see also Van Inwagen v. Sanstead, 440
N.W.2d 513, 514-15 (N.D. 1989). For example, in
Investment Rarities, this Court affirmed a district
court judgment dismissing an attempted appeal from a decision
of the State Engineer because no statutory authority existed
for an appeal. Inv. Rarities, 396 N.W.2d at 748
(citing Jones v. N.D. Workmen's Comp. Bureau,
334 N.W.2d 188 (N.D. 1983); Schmidt v. N.D. Workmen's
Comp. Bureau, 74 N.D. 520, 23 N.W.2d 26 (1946)).
8] Here, in both the Brandt and Wieland appeals to the
district court, the notices of appeal state the appeals were
taken "under N.D.C.C. § 28-34-01." Section