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MDU v. Behm

Docket No. 20200122
Oral Argument: Wednesday, September 16, 2020 1:30 PM

Docket Info

Title
Montana-Dakota Utilities Co., a Division of
MDU Resources Group, Inc., n/k/a Montana-
Dakota Utilities Co., a Subsidiary of MDU
Resources Group, Inc., Plaintiff and Appellee
v.
Lavern Behm, Defendant and Appellant
Case Type
CIVIL APPEAL : REAL PROPERTY
Appeal From
Case No. 2016-CV-01678
North Central Judicial District, Ward County
Gary H. Lee
Oral Argument 9/16/2020

Parties' Statement of Issues

  • Appellant

    ISSUE 1 -- Is it a violation of due process and the taking clause for the state to allow a private corporation to take private property through eminent domain?
    ISSUE 2 -- Is it a violation of due process and the taking clause for the state to disregard a finding that the taking is not necessary and – as a matter of law – allow a private corporation to take private property through eminent domain based solely on the private corporation’s own determination that the taking is for a public use?
    ISSUE 3 -- Is it a violation of due process and the taking clause for the state to disregard the evidentiary findings of no public use and allow the taking to occur based solely on the private company’s own determination that there is a public use?
    ISSUE 4 -- Is it a violation federal due process, the taking clause, and the right to a jury to allow a taking of private property without a jury determination that the taking is for a public use?
    ISSUE 5 -- Is it a violation state due process and the right to a jury to allow a taking of private property without a jury determination that the taking is necessary?
    ISSUE 6 – Given the statutory language which requires costs “for all judicial proceedings,” did the lower court err in not allowing attorney fee and costs relating to Behm’s appeal to the United States Supreme Court.

  • Appellee 1

    1.Whether the five constitutional issues raised in this appeal are procedurally and substantively appropriate for review.
    2.Whether the District Court erred in not awarding attorney’s fees and costs under N.D.C.C. § 32-15-32 for a landowner’s failed petition to the United States Supreme Court.
    3.Whether an award of attorney’s fees and costs is appropriate under N.D.R.App.P. 38 for having to defend against the five constitutional issues raised in this appeal.


Summary

Lavern Behm appeals from a judgment ordering Montana-Dakota Utilities Co. (“MDU”) to pay Behm $17,443 in attorney’s fees and costs.

MDU brought an eminent domain action to acquire an easement across Behm’s property to construct a 3,000-foot natural gas pipeline to service a switch on the Burlington Northern Santa Fe railroad’s right-of-way. The district court concluded construction of the pipeline was not necessary to maintain the switch for the safe operation of the railroad and dismissed the action. The district court’s decision was reversed on appeal because the court misapplied the law in concluding the proposed taking was not necessary for a public use. Montana-Dakota Utilities Co. v. Behm, 2019 ND 139, 927 N.W.2d 865. The case was remanded for a trial on eminent domain damages to be awarded to Behm. On remand, Behm submitted proposed jury instructions, including requesting the jury determine whether the taking of Behm’s property was necessary and for a public use. The district court denied Behm’s proposed jury instructions and ruled the only matter left to be decided was the issue of eminent domain damages. The parties stipulated to the terms of and valuation for the easement. The parties also agreed the amount of attorney’s fees would be determined by the court. The court adopted the parties’ stipulation. Behm moved for attorney’s fees, and the court awarded Behm $17,443 in attorney’s fees and costs. Judgment was entered.

On appeal, Behm argues his rights under the due process and takings clauses of the United States Constitution were violated, his constitutional right to have a jury determine whether the taking was for a public use or was necessary was violated, and the district court erred by failing to award some of the requested attorney’s fees.


Briefs

Filing Date Description
06/16/2020 APPELLANT BRIEF View
07/16/2020 APPELLEE BRIEF View
07/30/2020 REPLY BRIEF View

Counsel

Party Type Name
APPELLANT PRIVATE PRACTICE Lynn M Boughey - 04046
APPELLEE PRIVATE PRACTICE Zachary Ryan Eiken - 07832

(Note: Attachments may not be available for recently filed cases and/or confidential documents.)

Seq. # Filing Date Description Attachment
1 04/13/2020 NOTICE OF APPEAL : 04/13/2020
2 04/13/2020 ANNOUNCED DISQUALIFICATION : VandeWalle, Gerald W.
3 04/14/2020 ANNOUNCED DISQUALIFICATION : McEvers, Lisa K. Fair
4 04/16/2020 Rec'd $125 filing fee
5 04/16/2020 NOT. OF FILING NOT. OF APPEAL AND PROOF OF SERV.
6 04/16/2020 Notice served on Lynn M. Boughy and Malcolm, H. Brown
7 04/22/2020 Notice of Appearance by Zachary Ryan Eiken
8 05/13/2020 ELEC. RECORD ON APPEAL DATED MAY 12, 2020 (ENTRY NOS. 1-183)
9 05/19/2020 MOT. EXT/TIME APPELLANT BRIEF
10 05/20/2020 ACTION BY CLERK - Granted : 06/16/2020
11 06/16/2020 APPELLANT BRIEF View
12 06/16/2020 APPELLANT APPENDIX
13 06/16/2020 Oral Argument Request by Appellant
14 06/22/2020 Rec'd non-substantive corrections to ATB & ATA
15 06/25/2020 Rec'd additional non-substantive corrections to ATA
16 06/26/2020 Rec'd 5 copies of ATB & 4 copies of ATA from CSD
17 06/29/2020 Rec'd e-filing surcharge for ATA (receipt #27767)
18 07/16/2020 APPELLEE BRIEF View
19 07/16/2020 Oral Argument Request by Appellee
20 07/20/2020 Rec'd 5 copies of AEB back from CSD
21 07/30/2020 REPLY BRIEF View
22 08/03/2020 Rec'd non-substantive corrections to RYB (title, cert of comp)
23 08/06/2020 rec'd 5 copies of RYB from CSD
24 08/12/2020 NOTICE OF ORAL ARGUMENT SENT
25 08/19/2020 SITTING WITH THE COURT : Nelson, David W.
26 08/19/2020 SITTING WITH THE COURT : Schmalenberger, Allan L.
27 09/16/2020 APPEARANCES: Lynn M. Boughey; Zachary R. Eiken
28 09/17/2020 ARGUED: Lynn M. Boughey; Zachary R. Eiken
29 09/17/2020 ORAL ARGUMENT WEBCAST