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Brandt v. City of Fargo

Supreme Court of North Dakota

January 22, 2018

Michele L. Brandt, as Trustee of the Michele L. Brandt Revocable Trust Agreement dated January 9, 2013, Plaintiff and Appellant
v.
City of Fargo, Cass County, North Dakota, Defendant and Appellee Karen C. Wieland, Appellant
v.
City of Fargo, Cass County, North Dakota, Appellee

         Appeal 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.

          Jane L. Dynes, Fargo, ND, for defendant and appellee.

          OPINION

          CROTHERS, JUSTICE.

         [¶ 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.

         I

         [¶ 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 court.

         [¶ 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.

         II

         [¶ 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 ...


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