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City of Fargo v. Wieland

Supreme Court of North Dakota

December 12, 2019

City of Fargo, a political subdivison of the State of North Dakota, Plaintiff and Appellee
v.
Karen C. Wieland, Defendant and Appellant

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable John Charles Irby, Judge.

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

          Jonathan T. Garaas, Fargo, ND, for defendant and appellant.

          OPINION

          MCEVERS, JUSTICE.

         [¶1] Karen Wieland appeals from a judgment allowing the city of Fargo to take her property for flood mitigation purposes and awarding her $939, 044.32 in just compensation, attorney fees, costs, and statutory expenses. Because the district court did not misapply the law in concluding the taking of Wieland's property was necessary for a public use, we affirm the judgment.

         I

         [¶2] Wieland owned a home located at Copperfield Court in Fargo. The property, which abuts Drain No. 27, frequently flooded. After the 2009 flood in Fargo, Wieland and other area residents asked the City to fix the banks on Drain No. 27 to provide flood protection, and the City began examining possible solutions to the flooding problems. The City engineering staff and consulting engineers held public information meetings with landowners in the Copperfield Court area. In February 2012, the City held a meeting with the landowners and informed them that the recommended flood protection plan would require the acquisition of the Wieland property and other property to build an earthen levee for permanent flood protection. In August 2012, the Board of City Commissioners approved the recommended project and directed staff to prepare implementation and funding plans for the project.

         [¶3] Wieland and the City for years discussed the voluntary acquisition of her property. The City eventually offered Wieland the property's appraised value of $725, 000 plus statutory costs and moving expenses. Wieland rejected the offer. On December 19, 2016, the City issued a "resolution of necessity" stating "it is necessary for the city of Fargo to acquire [Wieland's property] to allow for such use as the construction of a flood protection project to protect the city of Fargo." In Brandt v. City of Fargo, 2018 ND 26, ¶¶ 1, 14, 905 N.W.2d 764, we affirmed dismissal of Wieland's challenge to the City's resolution of necessity because there was no statutory basis authorizing the appeal.

         [¶4] After further negotiations with Wieland failed, the City in April 2017 brought this eminent domain action seeking to acquire Wieland's property for flood protection purposes. The district court granted partial summary judgment concluding that permanent flood protection was a public use authorized by law and that the taking of Wieland's property was necessary to the use. Following a trial, the jury awarded Wieland $850, 000 as just compensation for the taking. The court awarded her an additional $89, 044.32 for attorney fees and other costs.

         II

         [¶5] Wieland argues the district court erred in granting summary judgment in favor of the City on the eminent domain questions of public use and necessity.

         [¶6] Our standard for reviewing summary judgments is well established.

Summary judgment is a procedural device under N.D.R.Civ.P. 56(c) for promptly resolving 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. The party seeking summary judgment must demonstrate there are no genuine issues of material fact and the case is appropriate for judgment as a matter of law. In deciding whether the district court appropriately granted summary judgment, we view the evidence in the light most favorable to the opposing party, giving that party the benefit of all favorable inferences which can reasonably be drawn from the record. A party opposing a motion for summary judgment cannot simply rely on the pleadings or on unsupported conclusory allegations. Rather, a party opposing a summary judgment motion must present competent admissible evidence by affidavit or other comparable means that raises an issue of material fact and must, if appropriate, draw the court's attention to relevant evidence in the record raising an issue of material fact. When reasonable persons can reach only one conclusion from the evidence, a question of fact may become a matter of law for the court to decide. A district court's decision on summary judgment is a question of law that we review de novo on the record.

Brock v. Price, 2019 ND 240, ¶ 10, 934 N.W.2d 5 (quoting Smithberg v. Smithberg, 2019 ND 195, ¶ 6, 931 N.W.2d 211).

         [¶7] Wieland argues the district court erred in granting summary judgment because she raised a genuine issue of material fact to preclude summary judgment, and because the City presented no evidence to support the court's decision that the requirements of N.D.C.C. § 32-15-05 have been satisfied. Section 32-15-05, N.D.C.C., provides:

Before property can be taken it must appear:
1. That the use to which it is to be applied is a use authorized by law.
2. That the taking is necessary to such use.
3. If already appropriated to some public use, that the public use to which it is to be applied is a more ...

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