The State of North Dakota, ex rel. The City of Marion, Plaintiff and Appellee
Larry Alber, Defendant and Appellant
from the District Court of LaMoure County, Southeast Judicial
District, the Honorable Mark T. Blumer, Judge.
J. Losing, City Attorney, Casselton, N.D., for plaintiff and
Alber, self-represented, Marion, N.D., defendant and
1] Larry Alber appeals from a January 2018 order amending a
2013 order which found Alber in contempt for failure to abate
a nuisance on his property in compliance with the October
2003 judgment. He argues that the judgment was satisfied when
he filed reports of compliance with the district court and
thus the property no longer contains a nuisance subject to
abatement. The City of Marion ("City") argues the
district court properly amended the 2013 order. We conclude
the district court did not err in amending its order to
clarify that the nuisance on the property remained subject to
abatement after Alber's conveyance of the property. We
affirm the district court's amended order.
2] In 2003, the district court declared unsheltered vehicles
on Alber's property to be a public nuisance in violation
of City of Marion Ordinance 28. In 2013, Alber was found in
contempt of the 2003 judgment's requirement that he abate
the nuisance. This Court affirmed the contempt finding on
appeal. State ex rel. City of Marion v. Alber, 2013
ND 189, 838 N.W.2d 458. In March 2014, Alber moved the
district court to reconsider the order under N.D.R.Civ.P.
60(b)(6). The motion was denied by the district court on May
7, 2014. Alber did not appeal the 2014 order. Alber then
filed a "Report of Compliance" on May 26, 2014. The
City filed objection to the report of compliance, and no
action was taken by the court. On November 21, 2016, the City
gave Alber notice that "it would be entering his
property to dispose of the junked vehicles." On December
4, 2016, Alber conveyed by quit claim deed the property at
issue to his children, Amy Vanderpool and Jonathan Alber.
Seeking to prevent the City from coming onto the property
until the dispute was resolved, Alber filed a Motion for
Injunctive Relief on December 19, 2016. The motion was denied
in January 2017. In July 2017, the City filed a motion to
amend the 2013 Order. The motion requested the district court
to add the language in italics to the 2013 contempt order:
It is the further Order of the Court as a remedial sanction
that any vehicles not so disposed of by Alber at the
expiration of sixty days from the lifting of the road
restrictions may be removed from any of Alber's
properties, including property in the City of Marion
Alber conveyed subsequent to February 22, 2013, and
disposed of according to law. The City shall be allowed to
enter any of Alber's properties, including property
in the City of Marion conveyed by Alber subsequent to
February 22, 2013, to remove and dispose of the
3] Alber and the City both appeared with counsel for a
hearing on the City's motion. An order granting the
City's motion and amending the order as requested was
entered on January 29, 2018. Alber then timely appealed to
4] The City's motion to amend the 2013 order cited only
N.D.R.Civ.P. 60(b)(6) as authority permitting the amendment.
Rule 60(b)(6) does not authorize the procedure used here.
Rule 60(b)(6) provides: "On motion and just terms, the
court may relieve a party or its legal representative from a
final judgment, order, or proceeding for the following
reasons:... (6) any other reason that justifies relief."
Rule 60(b)(6) does not grant the district court power to
"impose further affirmative relief in addition to that
already contained in the prior judgment," but only to
set aside a prior judgment. Bender v. Beverly Anne,
Inc., 2002 ND 146, ¶ 19, 651 N.W.2d. 642 (citing
McKenzie Cty. Soc. Serv. Bd. v. C.G., 2001 ND 151,
¶ 20, 633 N.W.2d 157).
5] Additionally, because N.D.R.Civ.P. 60(b) is identical to
Fed.R.Civ.P. 60(b), the federal court interpretations of
Fed.R.Civ.P. 60(b) are highly persuasive. C.G., 2001
ND 151, ¶ 20, 633 N.W.2d 157 (citing Mid-Dakota
Clinic, P.C. v. Kolsrud, 1999 ND 244, ¶ 6, 603
N.W.2d 475). "Under Rule 60(b), the district court may
grant relief from a final order or judgment for mistake...
only to set aside a prior order or judgment. It cannot be
used to impose additional affirmative relief."
Adduono v. World Hockey Ass'n, 824 F.2d 617, 620
(8th Cir. 1987). Neither the state nor federal rule
authorizes amendments providing additional affirmative
remedies. The City cited no other authority to the district
court in support of its requested amendment.
6] We will not reverse a district court decision solely
because the court relied on the wrong statute or rule if the
result is the same under the correct law and reasoning.
State v. Cook, 2018 ND 100, ¶ 25, 910 N.W.2d
179. Here, the district court reached the correct result, but
for the wrong reason.
7] The district court may amend an order at any time to
"speak the truth" under Rule 60(a). State v.
1998 Jeep Grand Cherokee, 2016 ND 9, ¶ 6, 873
N.W.2d 672. Whether the amendment here was proper turns on
whether the amendment provided additional relief or merely
amended the 2013 order to more clearly speak the truth. The
district court correctly identified and applied N.D.C.C.
§ 42-01-13, under which the legal effect of the amended
order is unchanged and is simply more clearly described.
Under N.D.C.C. § 42-01-13, "[e]very successive
owner of property who neglects to abate a continuing nuisance
upon or in the use of such property created by a former owner
is liable therefor in the same manner as the one who first
created it." Thus, despite Alber's conveyance of the
property subject to the abatement, the City could enforce the
2013 order. There is no dispute that the "property in
the City of Marion conveyed by Alber subsequent to February
22, 2013" is the same property already subject to ...