20190227 FILED IN THE OFFICE OF THE CLERK OF SUPREME COURT DECEMBER 12, 2019 STATE OF NORTH DAKOTA IN THE SUPREME COURT FOR THE STATE OF NORTH DAKOTA
Northern States Power Company, a Minnesota ) corporation, by its Board of Directors, ) ) Supreme Court No. 20190227 Plaintiff and Appellee, ) vs. ) ) LaVerne Mikkelson a/k/a LaVerne C. Mikkelson Sr,) Kandi Mikkelson a/k/a Kandi K. Mikkelson, ) Ward County District ) Court No. 51-2017-CV-00812 Defendants and Appellants, ) ) SRT Communications, Inc., A North Dakota ) cooperative association; Verendrye Electric ) Cooperative, Inc., a North Dakota cooperative ) association; Brett Livingston; Lisa Livingston; ) Jarrod Livingston; New Prairie Township; and ) Ward County, ) ) Defendants. ) APPEAL FROM THE JUDGMENT ENTERED JANUARY 22, 2019 (DOCUMENT NO. 109), PURSUANT TO THE FINDINGS OF FACT, CONCLUSION OF LAW, AND ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DIRECTING ENTRY OF JUDGMENT ENTERED JANUARY 16, 2019 (DOCUMENT NO. 107), AND THE ORDER DENYING DEFENDANTS’ MOTION TO AMEND ORDER AND JUDGMENT ENTERED MAY 30, 2019 (DOCUMENT NO. 156) THE HONORABLE DOUGLAS L. MATTSON, PRESIDING REPLY BRIEF OF APPELLANTS Richard P. Olson (ID# 03183) Jessica L. Merchant (ID #06169) Ryan G. Quarne (ID# 07618) OLSON & BURNS P.C. 17 First Avenue SE Minot, ND 58702-1180 (701) 839-1740 rpolson@minotlaw.com jmerchant@srt.com rgquarne@minotlaw.com Attorneys for Appellants LaVerne Mikkelson and Kandi Mikkelson
1 TABLE OF CONTENTS
Paragraph No.
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. The District Court erred in granting summary judgment. .. . . . . . . . . . . . . . . . . . 3
A. The Mikkelsons presented evidence of a material dispute of fact.. . . . . . 4
B. Mr. Cymbaluk provided admissible evidence of damages . . . . . . . . . . . . 15
II. The District Court Erred in Denying the Mikkelsons’ Motion to Amend. . . . . . 19
A. Mr. Mikkelson provided an admissible opinion regarding the impact of NSP’s taking on the value of the Subject Property. . . . . . . . . . . . . . . . . . 20
B. The Mikkelsons have provided a compelling argument in regards to the admissibility of compensation received by similarly-situated landowners..2.4
C. The Mikkelsons have provided a compelling argument in regards to the admissibility of offers that NSP made to the Mikkelsons. . . . . . . . . . . . . 27
III. NSP’s interpretation of Lenertz v. City of Minot is incorrect. . . . . . . . . . . . . . . . 29
IV. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
2 [¶1] TABLE OF AUTHORITIES
Paragraph No. Cases
Burke v. State, 2012 ND 169, ¶ 10, 820 N.W.2d 349, 353. . . . . . . . . . . . . . . . . . . . . . . . . 8
Dallis v. Aetna Life Ins. Co., 768 F.2d 1303, 1307 (11th Cir. 1985) . . . . . . . . . . . . . . . . 28
Flaten v. Couture, 2018 ND 136, ¶28, 912 N.W.2d. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Geck v. Wentz, 133 N.W.2d 849 (N.D. 1964).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26
Jim's Hot Shot Serv. v. Cont'l W. Ins. Co., 353 N.W.2d 279, 282, 283 (N.D. 1984). 10, 21
Lenertz v. City of Minot, 2019, ND 53, - N.W.2d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
State v. Goulet, 1999 ND 80, 10, 593 N.W.2d 345, 348 . . . . . . . . . . . . . . . . . . . . . . . . . 13
State v. Haibeck, 2006 ND 100, 9, 714 N.W.2d 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
State v. Noack, 2007 ND 82, 8, 732 N.W.2d 389, 392 .. . . . . . . . . . . . . . . . . . . . . . . . . . 13
Walton v. McDonnell Douglas Corp., 167 F.3d 423, 428 (8th Cir. 1999). . . . . . . . . . . . . 17
Statutes
N.D.C.C. 32-15-22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6
Rules
N.D.R.Civ.P. 59(j). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
N.D.R. Evid.408.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Other Authority
N.D. Const. Art. I, § 16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3 [¶2] LEGAL ARGUMENT
[¶3] I. The District Court erred in granting summary judgment.
[¶4] A. The Mikkelsons presented evidence of a material dispute of fact.
[¶5] Everyone agrees the Mikkelsons are entitled to just compensation. This
compensation should be determined by a jury. N.D. Const. Art. I, § 16; N.D.C.C. 32-15-22.
[¶6] In depositions, LaVerne Mikkelson said he had an opinion of the impact of the
easement on the market value of the Subject Property. Therefore, he is entitled under the
North Dakota Constitution, and under N.D.C.C. 32-15-22.
[¶7] At the District Court’s hearing on the motion for summary judgment, Counsel for the
Mikkelsons raised the exact relevant deposition testimony in which Mr. Mikkelson said the
fair market value of the Subject Property would be reduced to zero, App. pg. 59, LaVerne
Mikkelson Depo., 112:3 - 113:2. The Mikkelsons cited this passage in their appellate brief.
Mikkelson App. Br. at ¶ 40.
[¶8] Taking this passage in the light most favorable to the non-moving party, Mr.
Mikkelson has an opinion on the value of the property after the taking by NSP. For summary
judgment purposes, the evidentiary assertions of the party opposing the motion are assumed
to be true. Burke v. State, 2012 ND 169, ¶ 10, 820 N.W.2d 349, 353. Mr. Mikkelson should
be able to present this information to a finder of fact.
[¶9] NSP characterizes this argument as “limited” and “out-of context." These statements
are conclusive on their own. Furthermore, Mr. Mikkelson later amended his statement with
respect to the after-value of the property. App. pg. 59, LaVerne Mikkelson Depo., 112:3 -
113:2. Even if this testimony is inconsistent with other portions of Mr. Mikkelson's
4 testimony, that is a fact question. It is a question for a jury.
[¶10] NSP’s arguments regarding Mikkelson’s brief in response to summary judgment are
similarly unavailing. NSP points out that “[Mikkelson] stated on the record that he did not
have an opinion as to the diminution of value." This is true. App. 46, 61:13-23. However,
he also said at a later point in his deposition that there would be no value on the portion taken
by NSP. This is clearly an opinion on the diminution of value. This is consistent with Jim’s
Hot Shot Serv., Inc. v. Cont’l W. Ins. Co., 353 N.W.2d 279 (N.D. 1984). It is not an attempt
to “attack the strawman”. Rather, it goes to the heart of a landowners’ right to receive just
compensation for property which is being taken from him. In Jim's Hot Shot, the property
owner claimed he took a gross income of $450,000.00 and multiplied it by ten, to come up
with the value of his property, and he did not provide a rational basis for this method of
calculation. Id. at 283. Mr. Mikkelson instead based his conclusion that there would be no
value on this parcel due to the added cost each year to farm around the power lines. App. pg.
59, LaVerne Mikkelson Depo., 112; 9-21. This, considered with his vast experience farming,
buying, and selling land, is a sufficient rational basis to calculate a value. Mr. Mikkelsons'
lengthy experience as a farmer and landowner means that his opinion on the value of land
is solid testimony, based on proper facts and analysis. Whatever else was stated at his
deposition, this information is an opinion on valuation. It must be considered.
[¶11] NSP argues that “at no point during oral argument did the Mikkelsons’ counsel ever
fully present lines 112:22-113:2 or argue why these particular statements purportedly
demonstrated a genuine dispute regarding damages. However, counsel for the Mikkelsons
provided portions of the citation directly to the District Court. App. 98-99 8:15-10:9.
5 [¶12] Ms. Merchant stated: “That supports our position in light of the fact that even though
they indicate that NSP or that Mikkelsons would not be able to provide a diminution in value
without labeling it as such Mr. Mikkelson has provided admissible, probative testimony that
indicates that he feels that the diminution in value is 100 percent.” Id. She continued that “
Mr. Mikkelson has testified essentially through deposition testimony that he believes that the
property has zero value. And so his before value for the purposes of agricultural land is
$3,000. He believes that it's 100 percent diminution.” Id.
[¶13] This Court has stated that it is not a "ferret," because it has no obligation to make an
"unassisted search" of the record. State v. Goulet, 1999 ND 80, 10, 593 N.W.2d 345, 348
Separately, this Court has stated that it will not "will not consider an argument that is not
adequately articulated, supported, and briefed." State v. Noack, 2007 ND 82, 8, 732 N.W.2d
389, 392, citing State v. Haibeck, 2006 ND 100, 9, 714 N.W.2d 52. It means the Court does
not have a duty to investigate arguments that are raised without evidentiary or legal support.
It does not mean the Court may disregard any argument raised without a brief.
[¶14] There was no "unassisted search" of the record here. The Mikkelsons brought to the
Court's attention a statement that was already on the record, through the deposition transcript
of LaVerne Mikkelson. The argument was "adequately articulated, supported, and briefed"
because the Mikkelsons pointed to statements on the record, and explained a coherent legal
basis. Therefore, NSP's argument fails. As such, the Mikkelsons respectfully request that the
Court overturn the District Court’s ruling on the motion for summary judgment.
[¶15] B. Mr. Cymbaluk provided admissible evidence of damages.
[¶16] The District Court also found that Mr. Cymabaluk attested that he was only asked
6 to appraise the Subject Property before the taking. However, Cymbaluk's appraisal set forth
a value of $2,500.00 per acre. App. pg. 71, Cymbaluk Appraisal.
[¶17] At trial, NSP will have the chance to ask Cymbaluk about the basis of the
Mikkelsons’ conclusions, and about his own experience and qualifications, including his
prior assessments of diminution in value. Similarly, Cymbaluk attested that he would provide
rebuttal testimony as to NSP's expert report. Cymbaluk's expert disclosure was filed with the
court. App. pg. 68-69, Disclosure of Expert Witness. NSP's expert has testified that the
dimunition in value to the property underlying the proposed easement is 50%, so at the very
least Cymbaluk’s testimony would be relevant as to the before valuation. App. pg. 72-75,
Bock Appraisal. NSP has argued that a party must present affirmative evidence, not simply
contend that a jury might disbelieve the moving party’s evidence. Walton v. McDonnell
Douglas Corp. 167 F.3d 423, 428 (8th Cir. 1999). If nothing else, the Mikkelsons would have
been within their rights to call Mr. Bock to testify in their own case in chief to show
dimunition in value percentage, and then use Mr. Cymbaluk and Mr. Mikkelson's testimony
to show the starting point should have been higher.
[¶18] Cymbaluk’s statements showed he could testify that there was a material dispute of
fact regarding the diminution in value. Therefore, District Court’s Conclusions of Law were
erroneous and should be overturned.
[¶19] II. The District Court erred in denying the Mikkelsons’ Motion to Amend.
[¶20] A. Mr. Mikkelson provided an admissible opinion regarding the impact of NSP’s taking on the value of the Subject Property.
[¶21] An owner may testify as to the value of his property without qualification other than
7 the fact of ownership. Jim's Hot Shot Serv. v. Cont'l W. Ins. Co., 353 N.W.2d 279, 282
(N.D. 1984). A district court “may decline to consider an issue or argument raised for the
first time on a motion for reconsideration [under N.D.R.Civ. P. 59(j)] if it could have been
raised in earlier proceedings.” Flaten v. Couture, 2018 ND 136, ¶28, 912 N.W.2d (alterations
in original) (citations omitted). Here, information provided in the Mikkelson’s motion was
based on deposition testimony that was submitted as a part of NSP’s motion for summary
judgment. Even if this would be considered new information, there is nothing saying the
District Court could not consider information that was already on the record. The District
Court’s order did not refuse to consider new information presented. Instead, the order
acknowledged Mr. Mikkelson’s testimony that the property affected by the transmission line
was devalued by 100%, but concluded that LaVerne Mikkelson only offered a subjective
valuation of the property’s value after installation of the new transmission line. App. pg. 88,
¶¶6-7. However, his testimony was competent, admissible and not merely subjective- and
as such should have created a dispute of material fact. Therefore it was an abuse of
discretion to conclude that summary judgment was appropriate.
[¶22] When taken as a whole, the testimony shows that Mr. Mikkelson was competent to
provide admissible evidence on the market valuation of the taking. See App. pg. 62, LaVerne
Mikkelson Depo., 124:24 - 125:16 (noting the land has no value), App. pg. 62, LaVerne
Mikkelson Depo., 125:25 - 126:7. (noting he not pay anything for land under the easement),
and LaVerne Mikkelson Depo., App. pg. 62, 126:24-25-127:18 (explaining how he would
use a before-and-after approach).
[¶23] NSP cites to a portion of the deposition transcript acknowledging that Mr. Mikkelson
8 has bought tens of thousands of acres, where he then states that he would devalue land next
to the easement property so he would not be paying anything for it. This testimony shows
that he in fact had negotiations play out in that fashion. App. pg. 62 LaVerne Mikkelson
Depo, 126:10-1:27:18. There is no guesswork to be done by the jury in this instance. Instead,
the jury will either believe Mr. Mikkelson, or they will not. Based on this testimony, it
would not be appropriate to grant summary judgment.
[¶24] B. The Mikkelsons have provided a compelling argument in regards to the admissibility of compensation received by similarly-situated landowners.
[¶25] NSP argued that this Court has recognized that evidence of unaccepted offers to
landowners are generally inadmissible because they do not reflect the value ultimately agreed
to by a buyer and seller. NSP looked for support under Geck v. Wentz, 133 N.W.2d 849
(N.D. 1964), but failed to note that Geck discusses unaccepted offers made by third parties,
as opposed to offers being made from the condemning authority.
[¶26] In their prior briefing, the Mikkelsons showed how the Geck analysis weighs in favor
of admissibility. In fact, these offers would be highly probative as to market value. In any
event, resolution of the admissibility of these offers, both to the Mikkelsons as well as to
other landowners, should more appropriately have been dealt with in a motion in limine, as
opposed to being a part of the dispositive summary judgment motion.
[¶27] C. The Mikkelsons have provided a compelling argument in regards to the admissibility of offers that NSP made to the Mikkelsons.
[¶28] The prior offers to the Mikkelsons, Saugstad, and Smith are admissible, simply
because they were made by NSP. Past offers made by NSP are not excluded by Rule 408,
because “for Rule 408 to apply, there must be an actual dispute, or at least an apparent
9 difference of opinion between the parties, as to the validity of a claim.” Dallis v. Aetna Life
Ins. Co., 768 F.2d 1303, 1307 (11th Cir. 1985), citing 2 J. Weinstein & M. Berger,
Weinstein's Evidence para. 408[01] (1982). Here, NSP's other offers were made into regards
to admitted, undisputed claims. Further, there was no dispute as to the $10,000.00 offered
to Mr. Mikkelson, other than the fact that NSP then attempted to only pay eighty percent of
the value. Therefore, they are not excluded by Rule 408.
[¶29] III. NSP’s interpretation of Lenertz v. City of Minot is incorrect.
[¶30] NSP argues that Lenertz v. City of Minot, 2019, ND 53, - N.W.2d supports its
position. However, Lenertz is distinguishable. In Lenertz, the landowner was advancing a
legal argument that the entirety of his property had a zero value subsequent to a partial
taking. Here, Mr. Mikkelson testified that he would spread the loss in value to the whole
parcel, not that the entire parcel of had zero value. The Lenertz court reasoned that any
discount in a potential sale would be the diminution in value. Id. ¶4. Here, Mr. Mikkelson’s
testimony is that the entire parcel would be discounted for the actual easement acreage,
spread across the parcel. The value of his property not taken directly by the power line
would be reduced overall because the value under the power line was zero. Therefore, NSP's
argument is not compelling.
[¶31] IV. CONCLUSION
[¶32] It is inappropriate to grant summary judgment on the issue of damages in an eminent
domain case. If nothing else, the Mikkelsons should be able to testify to the value of their
property before the taking and after the taking. For that reason, the District Court erred in
granting summary judgment, and abused its discretion in declining to amend its prior
10 judgment. The Mikkelsons request this Court overturn the District Court's summary
judgment order and order denying the Mikkelsons' Motion to Amend.
[¶33] Dated this 12th day of December, 2019.
OLSON & BURNS P.C.
/s/ Jessica L. Merchant Richard P. Olson (ID# 03183) Jessica L. Merchant (ID #06169) Ryan G. Quarne (ID# 07618) OLSON & BURNS P.C. 17 First Avenue SE P.O. Box 1180 Minot, ND 58702-1180 (701) 839-1740 rpolson@minotlaw.com jmerchant@srt.com rgquarne@minotlaw.com
Attorneys for Appellants LaVerne Mikkelson and Kandi Mikkelson
11 [¶36] CERTIFICATE OF SERVICE
I, Jessica L. Merchant, attorney for Appellants do hereby certify that on the 12th day of December, 2019, a copy of the REPLY BRIEF OF APPELLANTS was served on the following by electronic mail transmission, per N.D. Sup.Ct. Admin. Order 14(D):
Mr. Patrick D. J. Mahlberg Attorney for Northern States Power Fredrikson & Byron, P.A. Company 200 South Sixth Street, Suite 4000 Defendants and Appellees Minneapolis, MN 55402-1425
PMahlberg@fredlaw.com
Dated this 12th day of December, 2019.
/s/ Jessica L. Merchant Richard P. Olson (ID# 03183) Jessica L. Merchant (ID #06169) Ryan G. Quarne (ID# 07618) OLSON & BURNS P.C. 17 First Avenue SE P.O. Box 1180 Minot, ND 58702-1180 (701) 839-1740 rpolson@minotlaw.com jmerchant@srt.com rgquarne@minotlaw.com
ATTORNEYS FOR APPELLANTS LAVERNE MIKKELSON AND KANDI MIKKELSON
12 [¶37] CERTIFICATE OF COMPLIANCE
I, Jessica L. Merchant, attorney for the Appellants LaVerne Mikkelson and Kandi
Mikkelson, do hereby certify that the above brief complies with all type-volume
limitations as set forth in the North Dakota Rules of Appellate Procedure.
I further certify that the attached Reply Brief of Appellants complies with
N.D.R.App.P. 32 in that the brief does not exceed the reply brief limitation of 12 pages,
and was prepared using WordPerfect 10.0, Times New Roman font, size 12.
/s/ Jessica L. Merchant Richard P. Olson (ID# 03183) Jessica L. Merchant (ID #06169) Ryan G. Quarne (ID# 07618) OLSON & BURNS P.C. 17 First Avenue SE P.O. Box 1180 Minot, ND 58702-1180 (701) 839-1740 rpolson@minotlaw.com jmerchant@srt.com rgquarne@minotlaw.com
ATTORNEYS FOR APPELLANTS LAVERNE MIKKELSON AND KANDI MIKKELSON