923 N.W.2d 479
N.D.2019Background
- The City of Minot rebuilt a paved street and stormwater system adjacent to Allan Lenertz’s commercial property in 2013–2014; the property experienced three subsequent flood events.
- Lenertz sued the City in 2016 for inverse condemnation, alleging the project caused past and future flooding and amounted to a total taking.
- At trial the court concluded Lenertz made a prima facie showing of an inverse condemnation but, as a matter of law, that the taking was partial (intermittent/temporary flooding), not a total taking.
- Lenertz’s damages expert (appraiser Daniel Boris) opined the property had been rendered worthless; the court excluded that testimony as legally unhelpful and inconsistent with the law’s measure of damages.
- The court granted the City’s Rule 50 motion (judgment as a matter of law) dismissing Lenertz’s claim for lack of proof of diminution in value, and awarded the City costs and disbursements; the Supreme Court affirmed the dismissal but reversed the award of costs against Lenertz.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Nature of taking: total vs. partial | Lenertz: flooding is frequent, continuing, effectively a permanent taking/damaging of the entire property | City: evidence shows property retained economic value; at most a partial taking occurred | Court: only a partial taking (prima facie) established; not a total taking |
| Admissibility of expert damages testimony (Rule 702) | Lenertz: Boris’s opinion that property is worthless and consequential damages are recoverable should go to the jury for weight/credibility | City: Boris’s opinion conflicts with evidence, used improper measure (cost-to-cure as total loss), and lacks a reliable basis | Court: did not abuse discretion excluding Boris; testimony would not help jury and contradicted law on measure of damages |
| Sufficiency of damages proof (Rule 50/JMOL) | Lenertz: he and his expert testified about value/loss; owner testimony on value is admissible | City: plaintiff failed to prove diminution in market value; only offered total devaluation unsupported by evidence | Court: judgment as a matter of law proper because plaintiff failed to present evidence of diminution in value for partial taking |
| Award of court costs to prevailing defendant | Lenertz: N.D.C.C. § 32-15-32 governs eminent domain/inverse condemnation and precludes assessing costs against the landowner plaintiff | City: general cost statutes allow prevailing party to recover costs | Held: § 32-15-32 precludes awarding costs against a plaintiff landowner in an inverse condemnation action; district court abused discretion in taxing costs against Lenertz |
Key Cases Cited
- Bala v. State, 2010 ND 164, 787 N.W.2d 761 (describing elements and nature of inverse condemnation under state law)
- Irwin v. City of Minot, 2015 ND 60, 860 N.W.2d 849 (inverse condemnation principles; question of taking reviewed as law)
- Hager v. City of Devils Lake, 2009 ND 180, 773 N.W.2d 420 (analysis of permanent vs. temporary injuries from diversion of water; single cause of action rule)
- Minto Grain v. Tibert, 2009 ND 213, 776 N.W.2d 549 (standard for Rule 50/judgment as a matter of law)
- Cass County Joint Water Res. Dist. v. Erickson, 2018 ND 228, 918 N.W.2d 371 (trial court discretion on expert admissibility and costs/fees in condemnation contexts)