2019 ND 53
N.D.2019Background
- From 2013–2014 the City of Minot reconstructed a street and upgraded a storm sewer adjacent to Lenertz’s commercial property; thereafter the property experienced three flood events.
- In 2016 Lenertz sued the City for inverse condemnation, claiming the project caused past and future flooding amounting to a total taking.
- At trial the district court found Lenertz established a prima facie inverse condemnation but concluded as a matter of law the taking (if any) was partial/temporary, not a total taking.
- Before the jury considered damages, the court excluded plaintiff’s appraiser (Boris) as unhelpful under Rule 702 and granted the City’s Rule 50 motion (judgment as a matter of law) because plaintiff offered no admissible evidence of diminution in value.
- The district court dismissed the inverse-condemnation claim with prejudice and awarded the City costs and disbursements; the Supreme Court affirmed the dismissal and exclusion rulings but reversed the award of costs to the City.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Characterization of taking (total vs. partial) | Lenertz: flooding is frequent, continuing and effectively permanent—constitutes a total taking/damaging. | City: evidence showed continued economic use and value; at most a partial/temporary taking. | Court: evidence supported only a prima facie partial taking, not a total taking. |
| Admissibility of expert appraisal testimony (Rule 702) | Lenertz: Boris’s opinion on damages/damage measure was admissible; disputes go to weight not admissibility. | City: Boris’s valuation (property worthless) contradicted record and relied on improper methods; would not assist the jury. | Court: did not abuse discretion excluding Boris—his opinions conflicted with partial-taking framework and lacked reliable basis to assist jury. |
| Grant of Rule 50 judgment as a matter of law on damages | Lenertz: he testified to value and loss; some evidence of damages existed and should go to the jury. | City: plaintiff offered only evidence of total devaluation (worthless) and no admissible evidence of diminution in value. | Court: Rule 50 proper—no legally sufficient evidentiary basis for jury to calculate diminution in value. |
| Award of costs to the City | Lenertz: N.D.C.C. § 32-15-32 governs eminent domain/inverse-condemnation costs and precludes awarding costs against a plaintiff landowner. | City: general cost statutes permit prevailing party to recover costs; should recover costs defending a meritless inverse-condemnation claim. | Court: reversed costs award—§ 32-15-32 governs and precludes assessing costs against the plaintiff landowner in an inverse condemnation action. |
Key Cases Cited
- Irwin v. City of Minot, 860 N.W.2d 849 (N.D. 2015) (discusses inverse-condemnation elements and proximate cause)
- Hager v. City of Devils Lake, 773 N.W.2d 420 (N.D. 2009) (recurring flooding from permanent structure can be treated as a single permanent taking)
- City of Minot v. Boger, 744 N.W.2d 277 (N.D. 2008) (whether a taking occurred is a question of law, fully reviewable)
- Erickson, Cass Cty. Joint Water Res. Dist. v. Erickson, 918 N.W.2d 371 (N.D. 2018) (trial court discretion on expert admissibility and costs in condemnation context)
- Leevers Supermarkets, Inc. v. City of Jamestown, 552 N.W.2d 365 (N.D. 1996) (costs and fee provisions of general rules do not govern eminent domain; §32-15-32 controls)
- Arneson v. City of Fargo, 331 N.W.2d 30 (N.D. 1983) (trial court may award costs and attorney fees under §32-15-32 to landowner prevailing in condemnation)
- Minto Grain v. Tibert, 776 N.W.2d 549 (N.D. 2009) (standards for granting judgment as a matter of law)
- Bjorneby v. Nodak Mut. Ins. Co., 882 N.W.2d 232 (N.D. 2016) (Rule 50 standard and review are fully reviewable on appeal)