City of Fargo v. Wieland
- City of Fargo, a political subdivison
of the State of North Dakota, Plaintiff and Appellee
Karen C. Wieland, Defendant and Appellant
- Case Type
- CIVIL APPEAL : REAL PROPERTY
- Appeal From
Case No. 2017-CV-01047
East Central Judicial District, Cass County
John Charles Irby
Parties' Statement of Issues
A. Did the City of Fargo [hereinafter “City”] fail to honor N.D.C.C. § 54-12-01.1 which creates a statutory condition precedent to initiation of any condemnation action?
B. Did the City, on December 19, 2016, take a giant improper and untimely step toward exercise of eminent domain by passing a “Resolution of Necessity and authorize the commencement of legal action to acquire property at 4021 and 4033 Copperfield Court South (Attachment ‘A’)” without predicate facts allowing exercise of eminent domain?
C. Did the City, on December 19, 2016, have a public use project for which eminent domain could be exercised when no project exists?
D. Did the City have the right to exercise eminent domain when there already exists other public uses to which the property was already devoted, to include utility easements, a drainage ditch dedication, and a drainage ditch easement?
E. Was summary judgment inappropriate because of evidentiary and legal deficiencies when the City failed to sustain its burden of proof, and attempted to support its position utilizing impermissible opinion evidence?
F. Did the district judge fulfill his judicial function to determine if the property may be taken under N.D.C.C. § 32-15-05 by requiring proof “the use to which it is to be applied is a use authorized by law”, “that the taking is necessary to such use”, and “if already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use”?
G. Did the City have the right to use eminent domain in the first place when a flood control project, as authorized by N.D.C.C. § 40-05-01(67), must also meet the requirements of at least one (1) of the eleven (11) subsections set forth in N.D.C.C. § 32-15-02?
H. Did the City have the right to use eminent domain to create an inventory of land for future projects?
I. Does the City have the right to assert a necessity that is hopelessly vague or so broad that it encompasses virtually every conceivable public use, real or imagined?
J. If the City’s eminent domain process is inadequate, does it have the right to try to later justify prior deficiencies?
K. Was the District Judge allowed to issue the Final Order of Condemnation Authorizing the City of Fargo to Take Possession of Defendant’s property when the City had failed to pay the full amount of the judgment before its issuance?
L. Was the District Judge allowed to take judicial notice of a mayor’s declaration of emergency in violation of N.D.R.Ev. 201?
M. Was the District Judge allowed to issue an authorization to the City to use the landowner’s property as the City deems appropriate for flood mitigation purposes while appellate proceedings were still possible?
N. Was the District Judge premature in issuance of a Final Order of Condemnation when not all monies had been paid to landowner (or deposited with the Court)?
O. Is a landowner entitled to post-judgment statutory interest?
1. Whether the district court properly granted the City of Fargo’s Partial Motion for Summary Judgment in determining the City met the requirements of N.D.C.C. Ch. 32-15 including public use, necessity and more necessary public use.
2. Whether the district court properly entered its Final Order of Condemnation Authorizing the City to Take Possession on March 28, 2019.
3. Whether post-judgment interest accrues on judgment amounts deposited with the court pursuant to N.D.C.C. § 32-15-29.
Karen Wieland appeals from a district court 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.
Wieland owned a home in Fargo. The City of Fargo brought an eminent domain action seeking to acquire the property to construct permanent flood protection measures for flood mitigation. The district court concluded that permanent flood protection was a public use authorized by law and that the taking of Wieland’s property was necessary to the use, and allowed the City to take the property. 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.
On appeal, Wieland argues the district court failed to properly perform its eminent domain function. She argues the City failed to satisfy mandatory statutory notice requirements and failed to establish the necessary legal requirements for a taking. She also argues that she is entitled to interest on the judgment.
(Note: Attachments may not be available for recently filed cases and/or confidential documents.)
|Seq. #||Filing Date||Description||Attachment|
|1||05/10/2019||NOTICE OF APPEAL : 05/10/2019|
|2||05/10/2019||ORDER FOR TRANSCRIPT : 05/13/2019|
|3||05/13/2019||Received $125 filing fee|
|4||05/15/2019||NOT. OF FILING NOT. OF APPEAL AND PROOF OF SERV.|
|5||05/15/2019||Notice served on Jonathan T. Garaas, Jane L. Dynes, & Kasey D. McNary|
|6||05/17/2019||MOTION FOR Temporary Remand - RspDue : 05/28/2019|
|7||05/24/2019||Response Filed to Motion for Temporary Remand|
|8||05/29/2019||ACTION BY CHIEF JUSTICE - Denied|
|9||06/11/2019||ELEC. RECORD ON APPEAL DATED JUNE 10, 2019 (ENTRY NOS. #1 - #481 )|
|10||06/25/2019||ELECTRONIC TRANSCRIPTS DATED NOVEMBER 5, 2018|
|11||07/22/2019||ELECTRONIC TRANSCRIPT DATED NOVEMBER 6, 2018|
|12||07/22/2019||CERTIFICATE OF SERVICE FOR TRANSCRIPTS DATED NOVEMBER 5, 2018 AND NOVEMBER 6, 2018|
|15||07/17/2019||Oral Argument Request by Appellant|
|16||07/23/2019||Rec'd non-substantive corrections to ATB & ATA (pg #ing, cert of compliance)|
|17||07/25/2019||Rec'd $145.50 e-filing surcharge for ATA (receipt #27310)|
|18||07/29/2019||Rec'd 6 copies of ATB & ATA from CSD|
|21||08/15/2019||Rec'd 6 copies of AEB back from Central Duplicating|
|22||08/16/2019||Rec'd 6 copies of AEA back from Central Duplicating|
|24||08/28/2019||Rec'd 6 copies of RYB from Central Duplicating|
|25||09/11/2019||NOTICE OF ORAL ARGUMENT SENT|
|26||10/09/2019||APPEARANCES: Jonathan Garaas/Jane Dynes|
|27||10/09/2019||ARGUED: J. Garaas/Dynes|
|28||10/09/2019||ORAL ARGUMENT WEBCAST|