from the District Court of Burleigh County, South Central
Judicial District, the Honorable John W. Grinsteiner, Judge.
C. Ringsak, Bismarck, ND, for plaintiff and appellant.
F. Marrin, Grand Forks, ND, for defendant and appellee.
Great West Casualty Company appeals from a judgment of
dismissal with prejudice. We reverse and remand.
Bad Habit Trucking LLC owned a 1996 Peterbilt truck. Great
West Casualty Company insured the truck for Bad Habit
Trucking. Dusty Weinreis is a member of Bad Habit Trucking
LLC. Weinreis took the truck to Butler Machinery Company for
service work. The truck was destroyed by fire after the
service work was completed but before Weinreis paid for the
services. Great West paid Bad Habit Trucking $85, 000 for the
loss of the truck in accordance with the insurance policy.
In November 2017 Butler sued Weinreis in small claims court
for $9, 100.94 for the unpaid service work. Weinreis
counterclaimed in small claims court for the statutory
maximum, $15, 000, alleging loss of use of the truck, lost
profits, cost to repair and replace the truck, and loss of
personal property. Prior to the small claims hearing Butler
moved to dismiss the case without prejudice. Weinreis
resisted the motion, and a small claims hearing took place on
April 5, 2018. The court awarded Butler $8, 041.57 for the
unpaid service work and awarded Weinreis $15, 000 for lost
profits. Offsetting the recoveries resulted in a net award to
Weinreis of $6, 958.43.
In June 2018 Great West sued Butler in district court for
$81, 753.32 for the loss of the truck plus interest and
costs. Butler moved to dismiss under N.D.R.Civ.P.
12(b)(6), arguing the case was fully decided in small
claims court when Weinreis sued Butler for loss of the truck.
The district court granted Butler's motion to dismiss
because the issue stemmed from the same transaction or
occurrence, and found Great West should have filed a claim
for damages in the small claims action. Great West moved to
reconsider on the basis that Weinreis was the defendant in
the small claims action, not Great West or Bad Habit
Trucking. Great West argued privity did not exist between
Weinreis in his personal capacity and Great West as the
insurance company for Bad Habit Trucking. The district court
denied the motion to reconsider.
A motion to dismiss under N.D.R.Civ.P. 12(b)(6)
tests the legal sufficiency of the claim presented in the
complaint. Nandan, LLP v. City of Fargo, 2015 ND 37,
¶ 11, 858 N.W.2d 892. On appeal "we construe the
complaint in the light most favorable to the plaintiff and
accept as true the well-pleaded allegations in the
complaint." Id. (quoting Brandvold v. Lewis
& Clark Pub. Sch. Dist. No. 161, 2011 ND 185, ¶
6, 803 N.W.2d 827). We review de novo the district
court's decision granting a motion to dismiss under
N.D.R.Civ.P. 12(b)(6). Nandan, at ¶
11. A motion to dismiss under N.D.R.Civ.P. 12(b)(6)
is based on the pleadings, and "[i]f . . . matters
outside the pleadings are presented to and not excluded by
the district court, the motion [must be] treated as a motion
for summary judgment under N.D.R.Civ.P. 56." Mills
v. City of Grand Forks, 2012 ND 56, ¶ 7, 813 N.W.2d
574 (quoting Zutz v. Kamrowski, 2010 ND
155, ¶ 8, 787 N.W.2d 286).
In dismissing Great West's claims, the district court did
not test the legal sufficiency of the claims presented in the
pleadings under N.D.R.Civ.P. 12(b)(6). The district
court considered the entire record when it made the decision
to dismiss Great West's claim: "having reviewed the
briefs, exhibits, and affidavits, if any, submitted and the
entire file herein concerning the motion, and having heard
the arguments of counsel, if any, and being fully advised in
the matter, it is ordered . . ." Due to the scope of the
district court's review, this Court is required to review
the order as a granted motion for summary judgment.
The standard of review of a district court's decision to
grant summary judgment is well established:
"[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