Lovro v. City of Finley

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JULY 21, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 145Elton Lovro, Plaintiff and Appellant
v.
City of Finley, Defendant and Appellee
No. 20210300
Appeal from the District Court of Steele County, East Central Judicial District,
the Honorable Steven L. Marquart, Judge.
AFFIRMED.
Opinion of the Court by VandeWalle, Justice.
Theodore T. Sandberg, Grand Forks, ND, for plaintiff and appellant.
Howard D. Swanson, Grand Forks, ND, for defendant and appellee.
Lovro v. City of Finley
No. 20210300
VandeWalle, Justice.
[¶1] Elton Lovro appealed from a judgment dismissing his complaint with
prejudice after the district court granted summary judgment in favor of the
City of Finley (“City”). Lovro argues the court prematurely granted summary
judgment, the City waived its discretionary immunity, and the court erred in
applying immunity against the breach of contract claim. We affirm the
judgment.
I
[¶2] Lovro owns a house and property in Finley, Steele County, North Dakota.
In March 2020, the City’s water line connected to the curb stop leading to
Lovro’s home broke. Water flowed onto the property, damaging Lovro’s
driveway and basement. Lovro sued the City for negligence and gross
negligence. He alleged the damages were caused by the City’s failure to
properly operate, maintain, repair, and inspect their water system. Lovro also
sued the City for breach of contract based on the City’s failure to properly and
safely deliver water to his home. The City responded by denying the allegations
that it was negligent, grossly negligent or that its acts or omissions caused the
damages. The City denied the existence of any contractual relationship
between Lovro and the City. The City affirmatively alleged that it was immune
from suit under chapter 32-12.1 of the North Dakota Century Code.
[¶3] Discovery revealed that the City underwent a water main replacement
project in 2001. The project originally included replacement of a number of
service lines and curb stops. According to the unsworn declaration of Andrew
Aakre, city engineer, the scope of the project was reduced by eliminating 150
curb stops and associated service lines which reduced the overall project cost
by $130,600. Aakre contended the City approved the change after being
advised that the service lines and curb stops were in good working condition
and eliminating these would save the City $130,600. The water main
replacement project did not include Lovro’s property. According to the unsworn
1
declaration of George Braun, Director of Public Works, service lines and curb
stops typically fail due to physical damage, corrosion, frost movement, soil
movement, natural deterioration, improper installation, improper repairs or
other causes. Braun contended that no routine maintenance or procedure
would have prevented or predicted the break.
[¶4] The record reflects that the City had paid for some repairs to Lovro’s
driveway. However, when it came to payment for the repairs of the basement,
the City, through the North Dakota Insurance Reserve Fund, refused to pay.
The City moved for summary judgment arguing that Lovro’s claims were
barred by discretionary immunity and the public duty doctrine, Lovro failed to
establish the City was negligent, and there was no contractual relationship
between the parties. Lovro opposed the motion. A hearing on the City’s motion
was held. The district court granted the City’s motion and entered judgment
dismissing Lovro’s claims and awarding costs to the City.
II
[¶5] Lovro argues the district court erred in granting summary judgment
dismissing his claims because the ruling was premature and discovery was still
ongoing. The court did not specifically address Lovro’s request for additional
time under N.D.R.Civ.P. 56(f), therefore we assume the court denied the
request because it granted summary judgment in the City’s favor. Hayden v.
Medcenter One, Inc., 2013 ND 46, ¶ 7, 828 N.W.2d 775.
[¶6] A party seeking additional time for discovery should make a motion
under N.D.R.Civ.P. 56(f). Under Rule 56(f) a district court may delay its ruling
on a motion for summary judgment to allow additional discovery “[i]f a party
opposing the motion shows by declaration that, for specified reasons, it cannot
present facts essential to justify its opposition.”
[¶7] We have recognized that “[s]ummary judgment is appropriate only after
the non-moving party has had a reasonable opportunity for discovery to
develop his position.” Choice Fin. Grp. v. Schellpfeffer, 2006 ND 87, ¶ 9, 712
N.W.2d 855. A request for additional time for discovery under N.D.R.Civ.P. 56(f)
invokes the district court’s discretion, and its decision will not be overturned
2
on appeal absent abuse of that discretion. Swanson v. Larson, 2021 ND 216, ¶
8, 967 N.W.2d 778. “A court abuses its discretion if it acts in an arbitrary,
unreasonable, or unconscionable manner, it misinterprets or misapplies the
law, or its decision is not the product of a rational mental process leading to a
reasoned determination.” Id. (citing Ryberg v. Landsiedel, 2021 ND 56, ¶ 21,
956 N.W.2d 749). “[W]hen further discovery would not involve an issue which
is the subject matter of the summary judgment motion, a trial court does not
abuse its discretion in deciding the motion without granting the Rule 56(f)
request.” Perry Center, Inc. v. Heitkamp, 1998 ND 78, ¶ 10, 576 N.W.2d 505.
[¶8] Lovro requested additional time for discovery under Rule 56(f) in his
brief opposing summary judgment, he did not submit a declaration supporting
his request for additional discovery. In his brief to the district court, Lovro sought
additional discovery to depose multiple witnesses. However, Lovro has failed to
explain how the specific information sought would have precluded summary
judgment or why the information had not previously been obtained. A party
may not merely recite conclusory general allegations that additional discovery
is needed. Alerus Fin., N.A. v. Erwin, 2018 ND 119, ¶ 24, 911 N.W.2d 296. We
conclude the district court did not abuse its discretion in refusing to allow
additional time to conduct discovery.
III
[¶9] Lovro argues the district court erred in granting summary judgment
because the City waived its discretionary immunity by admitting liability and
paying for some of the repairs.
[¶10] Our standard of review when reviewing a district court’s summary
judgment decision 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
3
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.
Simmons v. Cudd Pressure Control, Inc., 2022 ND 20, ¶ 8, 969 N.W.2d 442(quoting RTS Shearing, LLC v. BNI Coal, Ltd., 2021 ND 170, ¶ 11, 965 N.W.2d
40).
[¶11] The source of discretionary immunity is N.D.C.C. § 32-12.1-03(3)(d),
which provides that a political subdivision may not be held liable for claims
based on “[t]he decision to perform or the refusal to exercise or perform a
discretionary function or duty, whether or not such discretion is abused and
whether or not the statute, charter, ordinance, order, resolution, regulation, or
resolve under which the discretionary function or duty is performed is valid or
invalid.”
[¶12] The discretionary function exception first appeared in Kitto v. Minot
Park District, 224 N.W.2d 795 (N.D. 1974), where this Court abolished
governmental immunity from tort liability for political subdivisions. Id. at 797.
However, political subdivisions retained some immunity for discretionary acts:
We do not contemplate that the essential acts of governmental
decision-making be the subject of judicial second-guessing or
harassment by the actual or potential threat of litigation. We hold
that no tort action will lie against governmental units for those
acts which may be termed discretionary in character. Included
within this category are acts traditionally deemed legislative or
quasi-legislative, or judicial or quasi-judicial, in nature. The
exercise of discretion carries with it the right to be wrong. It is for
torts committed in the execution of the activity decided upon that
liability attaches, not for the decision itself.
4
Id. at 804. The Kitto decision recognized that the legislature could modify or
shape governmental liability within its constitutional authority. Id. at 803.
Following Kitto, the legislature enacted N.D.C.C. ch. 32-12.1 to limit the
liability of political subdivisions. The purpose of the discretionary function
exception is to “prevent judicial ‘second-guessing’ of legislative and
administrative decisions grounded in social, economic, and political policy
through the medium of an action in tort.” Olson v. City of Garrison, 539 N.W.2d
663, 666 (N.D. 1995) (quoting Berkovitz v. United States, 486 U.S. 531, 536-37
(1988)).
[¶13] Lovro concedes that the City is entitled to discretionary immunity under
the statute but he asserts the City waived its discretionary immunity. The
district court found that Lovro failed to cite any case law which provided that
the discretionary function exception could be waived. We agree. Likewise, we
do not consider an argument that is not adequately articulated, supported, and
briefed. Krueger v. Grand Forks Cty., 2014 ND 170, ¶ 30, 852 N.W.2d 354.
[¶14] Lovro’s claims are barred by governmental immunity and he has failed
to establish that the City can or did waive its immunity. We conclude that the
district court did not err in granting the City’s motion for summary judgment.
IV
[¶15] Lovro argues the district court erred in granting summary judgment
dismissing his breach of contract claim because the City cannot assert
discretionary immunity against the breach of contract claim. The City argues
Lovro abandoned his breach of contract claim because his notice of appeal fails
to identify the issue and his brief makes no argument related to the breach of
contract claim.
[¶16] The failure to include an issue in the notice of appeal or statement of
issues does not preclude appellate review. See N.D. Workforce Safety & Ins. v.
Salat, 2019 ND 294, ¶ 11, 936 N.W.2d 294. However, we only decide those
issues which are “thoroughly briefed and argued” and “a party waives an issue
by not providing adequate supporting argument.” Weeks v. N.D. Workforce
5
Safety & Ins. Fund, 2011 ND 188, ¶ 9, 803 N.W.2d 601 (quoting Olson v.
Workforce Safety & Ins., 2008 ND 59, ¶ 26, 747 N.W.2d 71).
[¶17] Lovro did not thoroughly brief the breach of contract issue nor did he
provide adequate supporting argument. We conclude Lovro waived the issue
that the district court erred in dismissing his breach of contract claim.
V
[¶18] We have considered the remaining issues and arguments raised by the
parties and find them to be either unnecessary to our decision or without merit.
We affirm the judgment.
[¶19] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
6