from the District Court of Williams County, Northwest
Judicial District, the Honorable Benjamen James Johnson,
M. Mesteth, Fargo, ND, for plaintiff and appellee Agri
A. Hager, Bismarck, ND, for defendant, third-party plaintiff,
appellant, and cross-appellee Francis Franson.
J. Forster (argued) and Benjamin J. Sand (appeared),
Bismarck, ND, for third-party defendant, appellee, and
cross-appellant Hess Corporation.
Francis Franson appeals from a judgment entered after the
district court granted Hess Corporation's
("Hess") motion for summary judgment and Agri
Industries, Inc.'s ("Agri") motion for
prejudgment interest. Hess cross-appeals from the parts of
the district court's judgment rejecting Hess'
alternative arguments for dismissal. We affirm the portion of
the district court's judgment granting summary judgment
to Hess. We reverse the portion of the district court's
judgment granting Agri's motion for prejudgment interest.
In 2008, Hess hired Geokinetics USA, Inc. to complete
seismographic testing on Franson's property, which took
place in mid-December 2008. Shortly after, Franson noticed a
loss of pressure from his water well between December 2008
and January 2009. Franson hired Agri to drill a new well in
January 2009. In March 2013, Agri sued Franson for not paying
for its well-drilling services.
In May 2014, the district court granted Franson's motion
to commence a third-party action against Hess for the amounts
he owed Agri. Franson served the third-party complaint
against Hess in December 2014. In the third-party complaint,
Franson alleged the damage to his well was a direct result of
Hess' seismographic work on his property. In March 2017,
Hess moved for dismissal or summary judgment, arguing
Franson's claim expired under the six-year statute of
limitations, Franson's third-party complaint against Hess
failed to state a claim upon which relief could be granted,
and Hess could not be liable for torts of its independent
contractor. The district court determined Hess was not
entitled to dismissal under the statute of limitations and
Franson's third-party complaint was adequate under
N.D.R.Civ.P. 8 and 14. However, the district court granted
Hess' motion for summary judgment, concluding Hess could
not be held liable for the negligence of its independent
contractor and Franson did not comply with N.D.C.C. §
38-11.1-06, which required a certified water test to recover
against a mineral developer for damage to a water supply.
The district court held a jury trial on the remaining issues
between Agri and Franson, and the jury returned a verdict in
favor of Agri in the amount of $77, 924.85, the exact amount
invoiced to Franson for the services. The jury verdict did
not mention interest. Agri moved for an award of prejudgment
interest. The district court determined Agri was entitled to
prejudgment interest because the damages were certain or
capable of being made certain by calculation.
On appeal, Franson argues the district court erred in
granting Hess' summary judgment motion because N.D.C.C.
§ 38-11.1-06 does not require a certified water test to
recover from Hess. This Court reviews summary judgment as
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.
Hallin v. Inland Oil & Gas Corp., 2017 ND 254,
¶ 6, 903 N.W.2d 61 (quoting THR Minerals, LLC v.
Robinson, 2017 ND 78, ¶ ...