IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|Lawrence A. Hamilton, Philip B.||)||Supreme Court No. 20120269|
|Hamilton and Judy H. Casper,||)||Bowman County|
|)||Civil No. 06-10-C-00043|
|Larry G. Woll, Cynthia J. Woll, Tracy J.||)|
|Holiday, Robert V. Holiday, Philip Knolyn||)||APPEAL FROM THE ORDER|
|Gatcg II, Jacki DeMay, R. Craig Woll,||)||FOR SUMMARY JUDGMENT|
|Dorothy Jean Griswold, Russell Rapp,||)||ENTERED JANUARY 17, 2012,|
|Jeffery R. Carius, Michael Carius, Mark S.||)||AMENDED JUDGMENT|
|Rapp, Tandals Farm Inc., James H. Bragg,||)||ENTERED APRIL 16, 2012, AND|
|Julie K. McKinley, J. Michael Gleason||)||ORDER VACATING MOTION TO|
|DBA Gleason Land Co., Strata Minerals,||)||VACATE ENTERED APRIL 30,|
|Inc., Frances A. Hannifin, Alan R. Hannifin,)||2012 IN BOWMAN COUNTY|
|Desert Partners II L.P., Value Petroleum Inc.,)||DISTRICT COURT SOUTHWEST|
|J. Kyle Jones, Margaret J. Hannifin, Fall||)||JUDICIAL DISTRICT|
|River Resources, Chatfield Company,||)|
|Walter E. Opper, Emma Smart, John M.||)||THE HON. H. PATRICK WEIR,|
|Schattyn, Lloyd S. Schattyn, Noel L.||)||PRESIDING|
|Schattyn Soren, Avalon North LLC, Dakota||)|
|West Energy LLC, Ronald Rowland, Lee||)|
|LaBarre, Terry Aronson, Burlington||)|
|Resources Oil & Gas Company LP; Peyton||)|
|Woll, Jr., Trust dated June 8, 1993, Peyton||)||Brief of Defendants/Appellees|
|H. Woll, Trustee, Dana G. Woll, Successor||)||J. Michael Gleason d/b/a Gleason|
|Trustee; John H. Woll and Dorothea E.||)||Land Co., James H. Bragg, and|
|Woll, Trustees of the John & Dorothea||)||Julie K. Chenoweth f/k/a Julie K.|
|Woll Trust Agreement dated 1-31-90;||)||McKinley|
|Helen F. Rapp, Trustee of the Helen F.||)|
|Rapp Declaration of Trust dated 8-17-2004;||)|
|Alvin C. Schopp, Trustee; and all||)||David D. Schweigert ID# 05123|
|other persons unknown claiming any estate||)||William B. Wischer ID# 06946|
|or interest in or lien or encumbrance upon||)||116 North 2nd Street|
|the property described in the Complaint,||)||P.O. Box 955|
|)||Bismarck, ND 58502-0955|
|Attorneys for Defendants/Appellees|
TABLE OF CONTENTS
|Table of Contents||ii|
|Table of Authorities||iv|
|Statement of the Issues||1|
|Statement of the Case||2|
|Statement of the Facts||3|
|Law and Analysis||7|
|I.||The district court properly granted Summary Judgment because there were no disputed issues of fact.||7|
|A.||An ambiguity in the deeds did not create a material issue of fact.||9|
|II.||The district court correctly construed the deeds in question as conveying a royalty interest.||11|
|A.||The plain language of the deeds indicates that the deeds in question were meant to convey royalty interests.||12|
|B.||Extrinsic evidence indicates that the deeds in question were meant to convey royalty interests||16|
|II.||The district court did not abuse its discretion by Denying Rowland's Motion to Vacate Judgment.||20|
|A.||Rowland's Motion to Vacate Judgment was properly denied because it should have been addressed in Rowland's Resistance to Motion for Summary Judgment.||23|
|B.||Rowland's Motion to Vacate Judgment was properly denied because Rowland failed to establish "extraordinary grounds" to vacate the Judgment||27|
|C.||Rowland's Motion to Vacate Judgment was properly denied because the district court sufficiently considered and explained the decision.||28|
|Certification of Word Count||33|
|Certification of WordPerfect Processing Program||34|
TABLE OF AUTHORITIES
|Azure v. Belcourt Pub. Sch. Dist., 2004 ND 128, 681 N.W.2d 816||7,8|
|Beckler v. Bismarck Pub. Sch. Dist., 2006 ND 58, 711 N.W.2d 172||8|
|Bettger v. Bettger, 280 N.W.2d 915 (N.D. 1979)||24|
|Bohn v. Johnson, 371 N.W.2d 781 (N.D. 1985)||10|
|Carkuff v. Balmer, 2011 ND 60, 795 N.W.2d 303||9,11|
|Davis v. Davis, 268 N.W.2d 769 (N.D. 1978)||21|
|First Nat. Bank of Crosby v. Bjorgen, 389 N.W.2d 789 (N.D. 1986)||20|
|Follman v. Upper Valley Special Educ. Unit, 2000 ND 72, 609 N.W.2d 90||20,21|
|Grinaker v. Grinaker, 553 N.W.2d 204 (N.D. 1996)||21|
|Grinnell Mut. Reinsurance Co. v. Center Mut. Ins. Co., 2003 ND 50, 658 N.W.2d 363||21|
|Haugland v. City of Bismarck, 429 N.W.2d 449 (N.D. 1988)||23,27|
|Knutson v. Knutson, 2002 ND 29, 639 N.W.2d 495||21|
|Lynch v. New Pub. Sch. Dist. No. 8, 2012 ND 88, 816 N.W.2d 53||8|
|Minex Resources, Inc. v. Morland, 467 N.W.2d 691 (N.D. 1991)||9,11|
|Moen v. Meidinger, 547 N.W.2d 544 (N.D. 1996)||9,11|
|Pulkrabek v. Sletten, 557 N.W.2d 225, (N.D. 1996)||7|
|Schmidt v. Schmidt, 540 N.W.2d 605 (N.D. 1995)||23|
|Small v. Burleigh County, 239 N.W.2d 823 (N.D. 1976)||20,27|
|Sorlie v. Ness, 323 N.W.2d 841 (N.D. 1982)||10|
|State ex rel. Department of Labor v. Riemers, 2010 ND 43, 779 N.W.2d 649||24|
|Strom v. Giske,68 N.W.2d 838 (N.D. 1954)||23|
|Thiel Industries, Inc. v. Western Fire Insurance Co., 289 N.W.2d 786 (N.D. 1980)||14|
|Williams Co. v. Hamilton, 427 N.W.2d 822 (N.D. 1988)||23|
|Williams County Soc. Servs. Bd. v. Falcon, 367 N.W.2d 170 (N.D.1985)||23|
|North Dakota Century Code|
|N.D.C.C. § 9-07-02||13|
|N.D.C.C. § 9-07-16||14|
|N.D.C.C. § 47-09-13||19|
¶1 STATEMENT OF ISSUES
I. Whether the district court properly granted Summary Judgment.
II. Whether the district court properly construed the deeds in question as royalty interests.
III. Whether the district court properly denied Rowland's Motion to Vacate the Judgment.
STATEMENT OF THE CASE
¶2 Defendants J. Michael Gleason d/b/a Gleason Land Co. ("Gleason"), James H. Bragg ("Bragg"), and Julie K. Chenoweth f/k/a Julie K. McKinley ("Chenoweth") collectively known as the "Gleason Defendants" request this Court to affirm the district court's decision granting Plaintiffs' Motion for Summary Judgment. The "Gleason Defendants" also request this Court to affirm the district court's determination and conclusion that the deeds in question conveyed only a royalty interest. The "Gleason Defendants" lastly request this Court affirm the district court's decision denying Defendant Rowland's Motion to Vacate the Judgment. The "Gleason Defendants" agree with and incorporate Defendant Rowland's (Rowland) procedural history from the Statement of the Case.
STATEMENT OF THE FACTS
¶3 During the 1950s, Finlay F. Hamilton ("Finlay") bought and sold minerals throughout western North Dakota. (App. 82). During this time, Finlay acquired a one-fourth undivided mineral interest by a mineral deed recorded on January 13, 1953 to the following lands:
Township 130 North, Range 105 West, Bowman County, ND
Section 21: SW1/4 SE1/4
Township 131 North, Range 105 West, Bowman County, ND
Section 29: NW1/4
¶4 Afterwards, Finlay Hamilton conveyed some of his interests to others. Between March 1953 and February 1956, Finlay conveyed portions of his mineral interest by executing and delivering fifteen mineral deeds. (App. 14, 8599). All fifteen deeds were titled "Mineral Deed" and were granted using a mineral deed form. Id. Each deed also identified the interest being conveyed in the form of a fraction, with the denominator of the fraction representing the total number of acres in the tract or tracts of land from which the conveyed portion was taken (for example "---2/320ths." from several tracts containing 320 acres and "---1/160th." from a tract containing 160 acres). (App. 92, 98). Immediately following the typed fraction on the fifteen deeds in question, the word "Royalty" is typed in the blank. Id.
¶5 Some of the deeds are especially important to the "Gleason Defendants." On October 20, 1954, Finlay Hamilton conveyed a "--1/320th. Royalty" interest in the minerals to Roy Wissmiller and/or Dennis Wissmiller. App. 89 (the "Hamilton-Wissmiller deed"). On November 3, 1954, he conveyed a "--2/320ths. Royalty" interest to Roy M. White and/or Julie H. White App. 92 (the "Hamilton-White deed"). Roy M. White and Julie H. White subsequently conveyed their interest to Carl Ward on February 18, 1955. (the "White-Ward deed"). Also on February 18, 1955, Hamilton conveyed a "---320ths. Royalty" interest to Carl Ward. App. 97 (the "Hamilton-Ward deed"). By these deeds, as of February 18, 1955, prior to the first deed by which Finlay disposed of mineral acres in these tracts subject to the various royalty interests he had conveyed, the Wissmillers owned a 1/320th royalty interest and Carl Ward owned at least a 2/320th (potentially more depending on the ---/320th deed).
¶6 The Wissmiller and Ward interests were conveyed to J. Michael Gleason d/b/a Gleason Land Co., James H. Bragg, and Julie K. Chenoweth by subsequent quit claim deeds, transferring all of the Wissmiller and Ward interests to those three individuals in equal, undivided shares. The district held that the amount meant to be conveyed by the "---320ths" deed was 2/320ths. It is the understanding of the "Gleason Defendants" that the amount conveyed is not in dispute, just whether a royalty or mineral interest was transferred. The "Gleason Defendants" now file this brief to request that the Supreme Court affirm the district court in all respects.
LAW AND ANALYSIS
I. THE DISTRICT COURT PROPERLY GRANTED SUMMARY JUDGMENT BECAUSE THERE WERE NO DISPUTED ISSUES OF FACT.
¶7 Summary Judgment "shall be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. N.D.R.Civ.P. 56(c). "The plain language of Rule 56 requires the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to establish the existence of a factual dispute as to an essential element of his claim and on which he will bear the burden of proof at trial." Pulkrabek v. Sletten, 557 N.W.2d 225, 226 (N.D. 1996). The party moving for summary judgment bears the burden of showing the lack of genuine issues of material fact and that he or she is entitled to judgment as a matter of law. Azure v. Belcourt Pub. Sch. Dist., 2004 ND 128, ¶ 8 681 N.W.2d 816.
¶8 On appeal, the North Dakota Supreme Court will view all evidence in the light most favorable to the nonmoving party and give that party the benefit of all favorable inferences. Id. The nonmoving party cannot rely on the pleadings, briefs, speculation or unsupported, conclusory allegations, but must present competent, admissible evidence on an essential element of the claim in the form of an affidavit or other comparable means that raises an issue of material fact; otherwise, it is presumed such evidence does not exist. Id.; Beckler v. Bismarck Pub. Sch. Dist., 2006 ND 58, ¶ 7, 711 N.W.2d 172. The North Dakota Supreme 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. Lynch v. New Pub. Sch. Dist. No. 8, 2012 ND 88, ¶ 7, 816 N.W.2d 53. Whether the district court properly granted summary judgment is a question of law which the North Dakota Supreme Court will review de novo on the entire record. Id. In the case at hand, Summary Judgment was proper because no issues of material fact were in dispute.
A. An ambiguity in the deeds did not create a material issue of fact.
¶9 "In construing a deed, the primary purpose is to ascertain and effectuate the grantor's intent, and deeds are construed in the same manner as contracts." Carkuff v. Balmer, 2011 ND 60, ¶ 8, 795 N.W.2d 303. "The construction of a written contract to determine its legal effect is a question of law for the court to decide and, on appeal, we independently examine and construe the contract to determine if the trial court erred in its contract interpretation." Moen v. Meidinger, 547 N.W.2d 544, 546 (N.D. 1996). When the language of a deed is plain and unambiguous and the parties' intentions can be ascertained from the writing alone, extrinsic evidence is inadmissible to alter, vary, explain, or change the deed. Minex Resources, Inc. v. Morland, 467 N.W.2d 691, 696 (N.D. 1991). If a contract is ambiguous, extrinsic evidence may be considered to clarify the parties' intentions. Id.
¶10 Rowland argues that because the deeds are ambiguous, a material issue of fact was erroneously determined by the district court. The trial court and all parties are in agreement that the deeds in question were ambiguous. The parties are also in agreement that in order to ascertain whether a royalty or mineral interest was transferred, extrinsic evidence is needed to explain the grantors intent. Because the deeds were ambiguous and extrinsic evidence was needed to ascertain the grantor's intent, all parties in the Summary Judgment motion put forth all known extrinsic evidence. Plaintiffs/Appellees indicated that the plain language in the deed along with evidence that Finlay was an experienced oil broker showed the deeds were meant to convey a royalty. App. 71-80. Rowland argued that the language of the deeds along with rules of construction against the grantor proved that a mineral interest was conveyed. App. 106-115. Once the evidence as to the issue was presented, the district court determined the legal effect the deeds would have. "The construction of a written contract to determine its legal effect is a question of law for the court to decide." Bohn v. Johnson, 371 N.W.2d 781, 788 (N.D. 1985) citing Sorlie v. Ness, 323 N.W.2d 841, 844 (N.D. 1982). Further, as the trial court explained in the Memorandum Granting Summary Judgment, "All parties have agreed there are no factual disputes and the competing motions for summary judgment are ripe for this Court's decision." App. 143. None of the information available on the face of the deeds or any extrinsic evidence was questioned as being in dispute. The parties willingly submitted to have the district court rule on case. Therefore, although the deeds may have been ambiguous, the introduction of extrinsic evidence did not remove the district court's ability to rule on the legal effect the deeds would have because the facts presented through extrinsic evidence were not in dispute.
II. THE DISTRICT COURT CORRECTLY CONSTRUED THE DEEDS IN QUESTIONS AS CONVEYING A ROYALTY INTEREST.
¶ 11 "In construing a deed, the primary purpose is to ascertain and effectuate the grantor's intent, and deeds are construed in the same manner as contracts." Carkuff, 2011 ND 60, ¶ 8, 795 N.W.2d 303. "The construction of a written contract to determine its legal effect is a question of law for the court to decide and, on appeal, we independently examine and construe the contract to determine if the trial court erred in its contract interpretation." Moen, 547 N.W.2d at 546. When the language of a deed is plain and unambiguous and the parties' intentions can be ascertained from the writing alone, extrinsic evidence is inadmissible to alter, vary, explain, or change the deed. Minex Resources, Inc. , 467 N.W.2d at 696. If a contract is ambiguous, extrinsic evidence may be considered to clarify the parties' intentions. Id. Based on the evidence provided and the arguments made by all parties as to the conclusion the evidence led to, the deeds in question were properly ruled to be royalty interests instead of mineral interests. The difference between a mineral and royalty need not be repeated as it has been briefed adequately by both Rowland and the Plaintiffs/Appellees. The plain language of the deeds and extrinsic evidence provided ample support that the deeds in question were meant to convey a royalty interest.
A. The plain language from the deeds indicates that the deeds in question were meant to convey royalty interests.
¶12 The deeds in question all use the same form with the title "Mineral Deed." A blank spot is left open on each deed where the grantor can indicate what he intended to convey. In this spot, Finlay typed various fractional amounts and then wrote "Royalty" after many of the deeds. The plain language of the deeds, without looking at extrinsic evidence, indicates that a royalty was meant to be conveyed on any deed with the typed word "Royalty."
¶13 First, Finlay wrote the word "Royalty" on many of the deeds. It makes no sense why Finlay would go out of his way to write "Royalty" on a deed that said "Mineral Deed" if he didn't intend to convey a royalty interest. Under North Dakota Century Code § 9-07-02 "The language of a contract is to govern its interpretation if the language is clear and explicit and does not involve an absurdity." In this case, it is not absurd for the word "Royalty" to convey a royalty interest.
¶14 Furthermore, even though the deeds were prepared on a document which said "Mineral Deed," that does not change what the deeds convey. Typewritten terms in a contract or deed control over preprinted terms in the form used to make the contract or deed. Thiel Industries, Inc. v. Western Fire Insurance Co., 289 N.W.2d 786, 788 (N.D. 1980); N.D.C.C. § 9-07-16. In this case, the fractional interest transferred as well as the word "Royalty" was typewritten, while the remaining deed was preprinted. Royalty interests relate to minerals, so the mere use of the title "Mineral Deed" does not conflict with a conveyance of royalties. The word "Royalty" clarified the broader interest of mineral and made specific what Finlay intended to convey.
¶15 Similarly, the use of fractions such as "2/320ths" does not conflict with a conveyance of royalty interests. While royalties are often conveyed (or reserved, as in an oil and gas lease) by stating a decimal fraction, that is not always the case and, in any event, the means of expressing the fraction does not change its value or imply that a different type of interest is being conveyed. Fifty percent, 50%, .5, and ½ all mean the same thing. Therefore, the plain language of the deed indicates that the deeds with the written word "Royalty" were meant to transfer a royalty.
B. Extrinsic Evidence indicates that the deeds in question were meant to convey royalty interests.
¶16 It is also important to recognize what deeds Finlay wrote "Royalty" on. When looking at the deeds as a whole, Finlay wrote "Royalty" on some of the deeds, but not all of them. If Finlay had intended to convey mineral interests instead of royalty interests, he would have erroneously wrote "Royalty" on all of the deeds, or none at all, but he would not have picked and chosen. The act of writing "Royalty" on only some of the deeds shows an understanding that Finlay knew when he was deeding royalty rights and when he was deeding mineral rights.
¶17 The profession Finlay was involved in was also important. As has been adequately discussed by Plaintiffs/Appellees, Finlay was in the business of buying and selling oil properties and such knowledge indicates that the grantor knew what he was doing. (Plaintiffs/Appellees' Brief ¶18-22). Obviously being an expert in a field would mean that the person understands more complex distinctions compared to the average person. An investor who specializes in buying and selling oil properties would know the difference between a royalty and a mineral interest just like a lawyer would know the difference between a Summons and a Complaint.
¶18 Rowland argues that "royalty" meant the same as general minerals in the past. There is no known North Dakota precedent that recognizes that royalty and mineral transfer have ever been the same thing. Also, if Rowland's theory is correct, there would be no way for a grantor to transfer a royalty right because whether "Royalty" was written on the deed or not, a mineral transfer would occur. This would lead to an absurd result. Lastly, Rowland did not bring up that "royalty" was interpreted as "minerals" in some jurisdictions until the Motion to Vacate Judgment, after the Summary Judgment Motion had been granted. Rowland had an opportunity to bring this to the district court's attention, but chose not to. By failing to address multiple meanings of "royalty," Rowland waived the claim. Though he clearly waived this argument even at this later date, there is nothing to indicate Finlay understood the term to mean as Rowland argues. Instead, the evidence indicates to the contrary, that he recognized a difference and issued deeds to others in the same time frame, some of which used the term royalty and some that did not.
¶19 Rowland also argues that the court failed to apply statutory rules of construction against the grantor, Finlay. North Dakota Century Code § 47-09-13 requires a deed be interpreted in favor of the grantee. Rowland and Plaintiffs/Appellees are both grantees and Finlay is the grantor. Rowland asks the Court to interpret the deeds in his favor when he is the grantee, but not in Plaintiffs/Appellees' favor when they are grantees. Therefore, because the statutory construction cuts both ways, it really doesn't benefit Rowland. Taken together, no other reasonable inference can be made except that Finlay intended to convey royalty interests in the deeds in question.
III. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY DENYING ROWLAND'S MOTION TO VACATE JUDGMENT.
¶20 N.D.R.Civ.P. 60(b)(6) allows the court to relieve a party from final judgment, upon motion and just terms, "for any other reason that justifies relief." "A movant for relief under Rule 60(b) has a burden of establishing sufficient grounds for disturbing the finality of the judgment." First Nat. Bank of Crosby v. Bjorgen, 389 N.W.2d 789, 794 (N.D. 1986). "Rule 60(b) is not a substitute for an appeal." Follman v. Upper Valley Special Educ. Unit, 2000 ND 72, ¶ 10, n.3, 609 N.W.2d 90. 1. To vacate a judgment under Rule 60(b)(6), there must be some extraordinary circumstances present that justify relief. Small v.Burleigh County, 239 N.W.2d 823, 828 (N.D. 1976).
¶21 "A trial court's decision on a Rule 60(b) motion for relief is within the trial court's sound discretion and will not be overturned absent an abuse of discretion." Follman v. Upper Valley Special Educ. Unit, 2000 ND 72, ¶ 10, 609 N.W.2d 90 (citing Grinaker v. Grinaker, 553 N.W.2d 204, 207 (N.D. 1996)). An allegation of abuse of discretion must be affirmatively established; it is never assumed. See Davis v. Davis, 268 N.W.2d 769, 779 (N.D. 1978). "A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned determination, or it misinterprets or misapplies the law." Grinnell Mut. Reinsurance Co. v. Center Mut. Ins. Co., 2003 ND 50, ¶ 51, 658 N.W.2d 363. The North Dakota Supreme Court does "not determine whether the court was substantively correct in entering the judgment from which relief is sought, but determine[s] only whether the court abused its discretion in ruling that sufficient grounds for disturbing the finality of the judgment were not established." Knutson v. Knutson, 2002 ND 29 ¶7, 639 N.W.2d 495.
¶22 The district court was proper in denying Rowland's Motion for Vacating the Judgment for three reasons: (1) Rowland's "laches" argument should have been addressed in the Rowland's Resistance to Summary Judgment Motion, (2) Rowland failed to establish that extraordinary ground exist to grant the Motion to Vacate Judgment, and (3) the district court adequately explained its reason for denying Rowland's Motion. Because the district court did not abuse its discretion, the Court should affirm the district court's decision to deny the Motion to Vacate Judgment.
A. Rowland's Motion to Vacate Judgment was properly denied because it should have been addressed in the Resistance to the Motion for Summary Judgment.
¶23 Rowland argues that his Motion to Vacate Judgment should have been granted under a "laches" theory. "Laches is a delay or lapse of time in commencing an action that works a disadvantage or prejudice to the adverse party because of a change in conditions during the delay." Williams County Soc. Servs. Bd. v. Falcon, 367 N.W.2d 170, 174 (N.D.1985). "It is well settled that laches does not arise from a delay or lapse of time alone, but is a delay in enforcing one's rights which works a disadvantage to another." Schmidt v. Schmidt, 540 N.W.2d 605, 608 (N.D. 1995). The party invoking laches has the burden of proving prejudice from changed conditions occurring during the delay. Haugland v. City of Bismarck, 429 N.W.2d 449, 451 (N.D. 1988); Williams County Social Services Board v. Falcon, 367 N.W.2d 170, 174 (N.D. 1985); Strom v. Giske,68 N.W.2d 838, 846 (N.D. 1954).
¶24 In the case at hand, laches is not available as a defense because it was not argued in his Resistance to Summary Judgment Brief. App. 106-115. It is true that Rowland pled "laches" in his "Answer," (App. 39-40) but at no point was the "laches" argument addressed in Rowland's Resistance to Summary Judgment Brief. App. 104-115. It wasn't until after the district court had granted Summary Judgment in favor of the Plaintiffs that Rowland decided to argue "laches" in his Motion to Vacate Judgment. App. 239-247. "A motion for relief under N.D.R.Civ.P.60(b) should not be used to relieve a party from free, calculated, and deliberate choices he has made." State ex rel. Department of Labor v. Riemers, 2010 ND 43, ¶ 9, 779 N.W.2d 649. "Furthermore, an issue presented for the first time, such, as on a motion to vacate a judgment under Rule 60(b)(1), N.D.R.Civ.P., is generally too late to be seriously considered to make a new rule of law or to refine an existing rule." Bettger v. Bettger, 280 N.W.2d 915, 918 (N.D. 1979). Although Bettger references Rule 60(b)(1), instead of Rule 60(b)(6), the same rationale applies: Rowland did not timely argue his defense. Rowland had the ability to bring up the "laches" argument in his Resistance to Motion for Summary Judgment brief, however, he made a free, calculated and deliberate choice not to. In essence, by failing to address the "laches" argument, he waived it.
¶25 Allowing Rowland two chances to pursue a defense he intentionally chose not to address in his Brief in Resistance to Summary Judgment would result in future procedural abuses. Future respondents to Summary Judgment Motions would have incentive to argue only one defense in Resistance to the Summary Judgment Motion and then if the Summary Judgment was granted, the responding party would just argue additional defenses in a Motion to Vacate the Judgment. This would be an ineffective and inefficient way to deal with Summary Judgment Motions.
¶26 Therefore, because Rowland had an opportunity to argue "laches" and intentionally ignored it, a Motion under N.D.R.Civ.P. 60(b) is not available and the district court properly did not consider it valid.
B. Rowland's Motion to Vacate Judgment was properly denied because Rowland failed to establish extraordinary grounds to vacate the judgment.
¶27 To vacate a judgment under Rule 60(b)(6), there must be some extraordinary circumstances present that justify relief. Small v.Burleigh County, 239 N.W.2d 823, 828 (N.D. 1976). The party invoking laches has the burden of proving prejudice from changed conditions occurring during the delay. Haugland v. City of Bismarck, 429 N.W.2d 449, 451 (N.D. 1988). In the case at hand, Rowland argues that he has expended over $100,000.00 on the land over the years and Plaintiffs/Appellees have waited too long to bring a claim. Although Rowland may have had expenses over the years, he doesn't detail at all how much he has made in profits on the land. Furthermore, nothing in the record establishes what Rowland's monetary interest will be if the district court's decision is affirmed. The change in interest may change some of Rowland's rights, but the change in interest and potentially damages has not been established and in any case, does not reach the high threshold of prejudicial and "extraordinary grounds." Because Rowland has failed to establish extraordinary grounds to vacate the judgment, the district court's decision to deny Rowland's Motion to Vacate Judgment should be affirmed.
C. Rowland's Motion to Vacate Judgment was properly denied because the district court sufficiently considered and explained the decision.
¶28 Rowland also argues that the district court abused its discretion by failing to adequately explain why the district court denied his Motion to Vacate Judgment. The district court's Order Denying Motion to Vacate Judgment states as follows:
The Defendant has moved to vacate the judgment pursuant to N.D.R.Civ.P. Rule 60(b)(6). All parties agreed there were no factual disputes in this case when the summary judgment was issued. Based on the filings and affidavits provided, the Court made Its decision. The Court is not persuaded that It erred and will not now consider additional extrinsic evidence. The Movant has not raised any issues which would entitle him to the relief sought. The motion is therefor denied.
¶29 Although the district court's order is short, the district court sufficiently explains the rationale behind the decision not to grant the Motion to Vacate Judgment. The district court explained under what theory Rowland was moving the court to vacate the judgment, reiterated why Summary Judgment was granted, and explained how nothing provided by Rowland was persuasive enough to convince the district court that the Summary Judgment decision was decided incorrectly or that vacating the judgment was proper
¶30 Even if the district court did not specifically mention "laches," it is clear the court was indirectly mentioning "laches" when the district court said "The Movant has not raised any issues which would entitle him to relief sought." The laches argument was obviously not influential in convincing the district court to side with Rowland in regards to overturning Summary Judgment or vacating the Judgment. The district court is not required to explain in exhaustive detail why each argument is not persuasive. Therefore, the district court decision for affirming Summary Judgment and denying the Motion to Vacate Judgment was sufficient.
¶31 It is clear that Rowland should not have been able to argue "laches" and did not establish extraordinary grounds to vacate the Judgment. Furthermore, the decision the district court made was sufficient. Because the district court did not act in an arbitrary, unreasonable, or unconscionable manner when it denied the Motion to Vacate Judgment, the district court did not abuse its discretion. Since the district court did not abuse its discretion, the district court's decision to deny the Motion to Vacate Judgment should be affirmed.
¶32 In conclusion, the "Gleason Defendants" ask this Court to affirm the district court in all respects. Summary Judgment was proper because no disputes of material fact were present. The finding that the deeds in question conveyed a royalty interest instead of mineral interest was also proper because extrinsic evidence showed that Finlay intended to convey a royalty interest instead of a mineral interest. Lastly, the district court was correct when it denied the Motion to Vacate the Judgment.
Dated this ____ day of September, 2012
|SCHWEIGERT, KLEMIN & McBRIDE, PC|
|116 North 2nd Street|
|P.O. Box 955|
|Bismarck, ND 58502-0955|
|Fax (701) 258-8486|
|Attorneys for Defendants/Appellees Michael Gleason d/b/a Gleason Land Co., James H. Bragg, and Julie K. Chenoweth f/k/a Julie K. McKinley|
|William B. Wischer|
|ND State Bar ID# 106946|
|David D. Schweigert|
|ND State Bar ID# 05123|