In the Matter of the Estate of Lyle M. Nelson, Deceased First National Bank and Trust Co. of Williston, 24110.37as personal representative of the Estate of Lyle M. Nelson, Lavina Domagala, Trust Officer, Petitioner and Appellee
Glenn S. Solberg; Sharon Solberg Yoder; Bruce Solberg; Elaine Solberg Olson; Gloria Dei Lutheran Church; United Lutheran Church of Zahl; Dakota Boys Ranch of Minot; Heritage Center of Williston; Sons of Norway Lodge #086 of Williston; James Memorial Preservation Society (Old Library); Veterans and Friends of Old Armory; Douglas Murawski; James Murawski; Sandra Barnum; Eric Olson; Samuel Olson; Adam Olson; Tracy Solberg Willette; Angela Solberg; Russell Solberg, Respondents Glenn S. Solberg, Appellant
from the District Court of Williams County, Northwest
Judicial District, the Honorable Joshua B. Rustad, Judge.
M. Olson, Minot, ND, for petitioner and appellee.
Solberg, self-represented, Zahl, ND, appellant.
1] Glenn Solberg appeals from an amended judgment dismissing
his claims against the estate of his stepfather, Lyle Nelson
("Lyle Nelson Estate"). Glenn Solberg challenges
the district court's dismissal of his claim seeking
ownership of 100 mineral acres and seeking to enforce an
option to purchase real property. The court determined that
the mineral interests and real property alleged to be subject
to the option were never within the Lyle Nelson Estate and
that Glenn Solberg's claim was also untimely. We affirm
the amended judgment and grant the Lyle Nelson Estate's
request for an award of costs and attorney fees for a
frivolous appeal under N.D.R.App.P. 38.
2] In 1965 Sidney Solberg, Glenn Solberg's father, passed
away. Sidney Solberg's estate was the subject of a
probate proceeding and on November 17, 1965 the probate court
issued a final decree of distribution. The 100 mineral acres
and the property alleged by Glenn Solberg to be subject to a
purchase option ("option property") at issue in
this proceeding were distributed from Sidney Solberg's
estate as part of the probate proceedings. The 100 mineral
acres and the option property were distributed to Sidney
Solberg's wife, Lillian Solberg, for her life with the
remainder interest to Lillian Solberg and Sidney
Solberg's four children. Glenn Solberg is one of their
four children. There were no objections or other challenges
to the 1965 final decree of distribution.
3] After Sidney Solberg's death, Lillian Solberg married
Lyle Nelson. In 1985 Lillian Nelson executed a will. In 1997
Lillian Nelson executed a codicil to her will. In 2003
Lillian Nelson died. Glenn Solberg did not initiate any
claims against Lillian Nelson's estate and received 25
mineral acres located in Williams County under the terms of
4] A provision in Lillian Nelson's 1985 will and a
provision in the 1997 codicil are the foundation for Glenn
Solberg's claim against the Lyle Nelson Estate. Lillian
Nelson's 1985 will includes a specific devise to Glenn
Solberg of "one hundred (100) mineral acres out of what
I have remaining at the time of my death in and under other
real property, in appreciation for breaking up some of my
land during my lifetime." Lillian Nelson's 1997
codicil allegedly creates an option for Glenn Solberg to
purchase the option property through a right of first
refusal. At the time Lillian Nelson executed her will and the
codicil, Lillian Nelson's interest in both the 100
mineral acres and the option property was limited to a life
5] Glenn Solberg's claim against the Lyle Nelson Estate
in this proceeding is based on his assertion that he was
entitled to the distribution of the 100 mineral acres as
provided in Lillian Nelson's 1985 will and that he is
entitled to exercise the right of first refusal on the option
property as provided in Lillian Nelson's 1997 codicil.
The district court dismissed Glenn Solberg's claim
against the estate, but in Estate of Nelson, 2015 ND
122, ¶ 12, 863 N.W.2d 521, we reversed and remanded for
the court to provide an adequate explanation of the legal
basis for its decision. On remand, the court granted the
personal representative's request to dismiss the claims
under N.D.R.Civ.P. 12(b)(6) after determining that the 100
mineral acres and the option property were never held by the
Lyle Nelson Estate and were never under the control of or
owned by Lyle Nelson. Alternatively, the court ruled any
claim of improper distribution in the Lillian Nelson estate
was time barred under N.D.C.C. § 30.1-21-06.
6] Our review of a district court's dismissal of a claim
for failure to state a claim upon which relief can be granted
under N.D.R.Civ.P. 12(b)(6) is well established. In
Estate of Dionne, 2013 ND 40, ¶ 11, 827 N.W.2d
555, we explained:
"A motion to dismiss a complaint under N.D.R.Civ.P.
12(b)(vi) tests 'the legal sufficiency of the statement
of the claim presented in the complaint.'" Hale
v. State, 2012 ND 148, ¶ 13, 818 N.W.2d 684
(quoting Ziegelmann v. DaimlerChrysler Corp., 2002
ND 134, ¶ 5, 649 N.W.2d 556). "Under N.D.R.Civ.P.
12(b)(vi), a 'complaint should not be dismissed unless it
is disclosed with certainty the impossibility of proving a
claim upon which relief can be granted.'"
Hale, at ¶ 13 (quoting Ziegelmann, at
¶ 5). On appeal, the complaint must be construed
"'in the light most favorable to the plaintiff,
taking as true the well-pleaded allegations in the
complaint.'" Hale, at ¶ 13 (quoting
Ziegelmann, at ¶ 5). "We will affirm a
judgment dismissing a complaint for failure to state a claim
if we cannot 'discern a potential for proof to support
it.'" Hale, at ¶ 13 (quoting
Ziegelmann, at ¶ 5).
7] Our law regarding the rights of someone who holds a life
interest in property is also well established. In
Schroeder v. Buchholz, 2001 ND 36, ¶ ...