*1 BANK, SECURITY NATIONAL
EDGELEY, Dakota, North Appellee,
Plaintiff Wald,
Allen WALD and Debra Sue Appellants.
Defendants
Civ. No. 930018. North Dakota.
Aug. 1995. *2 Minch, Serkland, Lundberg,
Roger J. Erickson, McLean, Ltd., Fargo, for Marcil & appellee. plaintiff Dickson, Dickson, A. of Thomas A. Thomas P.C., Bismarck, appel- for defendants Wald, appel- Appearance Debra lants. lant. WALLE, Chief Justice.
VANDE
appealed
and Debra
Wald
Allen
Sue
which,
part, dismissed
final
against
supplemental
their first amended counterclaim
Se-
ditional time
submit
materi-
curity
Bank
and denied their motion
als on the Walds’ first amended counterclaim.
materials,
file a
of filing supplemental
second amended counterclaim. We
Instead
*3
part,
part,
in
in
and
prejudice
affirm
reverse
remand Walds moved to dismiss without
counterclaim,
proceedings.
for further
first
amended
and
separate
against Security
filed a
action
Na-
Security
and 1991 the Walds and
tional,
presented
asserting the claims
in their
promissory
four
*4
decency,
regarded
to
atro-
as
Code,
Commercial
to
under
the Uniform
cious,
utterly
intolerable in a civilized
good-faith obligation
could attach.
which
community. Generally, the
is
one
Motors,
v.
Jerry
See also
Harmon
Inc.
First
of the facts to an
which
recitation
Co., 472
748
Nat’l Bank & Trust
N.W.2d
community
would
average member
Ista,
(N.D.1991); Production Credit
v.
Ass’n
actor,
against
his
arouse
resentment
’ ”
exclaim, “Outrageous!”
and lead him to
Similarly,
determining
in this case we need not
In
whether
actor’s
tort
outrageous,
decide whether that
exists
a commer
is
an actor
conduct
extreme and
context, because,
does,
assuming
cial
it
“never
...
has done no
is
liable
where he
rights
legal
no
his
in a
presented
have
evidence
affida more than to insist
permissible
he
well
way,
though
to
even
is
vit or otherwise
establish
existence
duty
insistence is
to cause
aware that such
certain
a contract
under the Uniform Com
Torts
Code,
emotional distress.” Restatement 2d
good-faith
mercial
which the
obli
46,
v.
T
g.
§
comment
AT &
See McCormick
gation
could attach.
National’s reli
Cir.1991),
(4th
Inc.,
Technologies,
“‘The cases thus decided cedent, investigation of the circumstances liability only con- his where the defendant’s dece- It her and statements outrageous. has extreme and death duct unkind, family, inconsiderate and enough defendant dent’s while has not been of extreme and did not rise to level acted with an intent which is tortious outrageous “Well, deny going conduct. We held reason- I’m the motion to persons disagree po- amend, able could not that the In amend. the motion to lice officer’s conduct was not extreme and making any way I’m not statement one outrageous, summary judg- and we sustained claims, validity other against po- ment dismissal of the action but it seems to me that if there are some lice officer. claims, valid that could be handled some separate action.” Swenson, majority of this court con- allegations employer cluded that that an A decision on a motion to amend agent guilty employment its were discrimi- 15(a) pleading is ad N.D.R.Civ.P. regarded nation could be as ex- dressed to the sound discretion of the trial outrageous treme and conduct. that ease appeal court and will not be overturned on allegations supervisor there were had absent an abuse of discretion. First Inter engaged gender against discrimination Rebarchek, Fargo, N.A. state Bank employee supervisor subordinate who N.W.2d 235 A court abuses its suffering deteriorating knew was from a *5 arbitrary, if it discretion acts in an unreason that, majority emotional condition. The held able, manner, or unconscionable or if it mis circumstances, per- those reasonable interprets misapplies law. the Knudson disagree sons could about whether the defen- Director, Transpor Dep’t v. North Dakota dants’ outrageous conduct was extreme and tation, a reversed dismissal. case, In this of the court’s case, In allegations against this the denying rationale for the motion to Walds’ Security do not to National rise the level of file a second amended that counterclaim was outrageous Security extreme and conduct. sepa those claims in “could be handled some obligation National was under no to release However, rate action.” under N.D.R.Civ.P. to the proceeds Walds the insurance from the 13(a), if a claim arises out of the same “trans combine, and its conduct cannot subject action or occurrence that is the mat regarded degree” be as “so extreme in as to claim,” ter of opposing party’s the is a it “beyond all possible decency” be bounds of compulsory must plead counterclaim and “utterly toor in intolerable a civilized” in response opposing party’s to the plead society. We hold that court properly the ing. Greenwood, Klem v. granted summary judgment on the Walds’ (N.D.1990); Dobesh, Dangerud v. claim of intentional infliction emotional plead N.W.2d 328 The failure to distress. compulsory response counterclaim in The Walds also contend that the court opposing party’s pleading precludes in denying abused its discretion their motion being counterclaim from raised in a subse counterclaim, which, to file a second amended Klem; quent Dangerud. action. We have substance, in alleged Security National construed “transaction or occurrence” broad had agreement breached written to subor- ly multiplicity to avoid of suits and mean security dinate its interest so the Walds claim “logically op that is related” to the could obtain loan from Bank of North posing party’s claim. Leo Lumber Co. They argue Dakota. that the second amend- Williams, ed counterclaim was based information discovered course this action. Here, the Walds’ second amend Security responds that the court did alleges Security ed counterclaim Nation refusing not abuse its discretion to allow agreement al breached a written to subor to file a counter- security dinate its interest so the Walds claim, request timely. because their was not could obtain a loan from another lender. motion, denying “logically the Walds’ court That counterclaim is related” to said, part: Security pleading. National’s Their counter- result; in the Justice Mesehke concurred compulsory and must be raised claim is specially concurred and filed pleading Justice Levine response to National’s con- opinion; and Chief Justice VandeWalle raising it subse- in a precluded II, parts I and dissented motion, curred quent the Walds’ action. III, opinion. filed not whether the trial court did consider notes: compul- was a counterclaim second amended sory To the court’s counterclaim. the extent JOHNSON, PHILIP who “Justice J. those claims “could be
rationale was
was a
Court when
member
action,”
separate
the court
in some
handled
heard,
participate
not
in this deci-
did
misapplied
compulsory
on
counter-
the law
sion.
also
Although
claims.
the court
said
Justice
“Justice NEUMANN and
timely,
we decline to
motion was
Walds’
SANDSTROM,
being
members
misapplication
of its
speculate on
effect
heard,
Court when this case was
did not
law
its ulti-
compulsory-counterclaim
on
participate in this decision.”
of Walds’ motion to amend
mate denial
conclude the court
their counterclaim. We
at 187.
misapplying
the law
abused its discretion
majority
Court is neces-
counterclaims, and
compulsory
we remand
sary
pronounce a
Const.
decision. N.D.
of the Walds’ motion to
for reconsideration
provides:
Art.
file
second amended counterclaim.
“A
court shall be
summary judgment
dismiss-
We affirm
*6
necessary
quorum
a
or to
to constitute
of
counterclaim.
al
the Walds’
decision,
pronounce
provided
a
the
the
motion
We reverse
order
their
legisla-
supreme
not
court shall
declare
file
counterclaim and
a second amended
unless at
tive enactment unconstitutional
proceedings
consistent
remand
of
of
court so
least four
the members
the
opinion.
with this
decide.”
disquali
Judges properly called to sit for
MESCHKE,
NEUMANN,
LEVINE and
all,
justices
of
may
part,
constitute
or
the
fied
JJ., concur.
Robinson,
majority.
ex rel. Linde v.
35
State
(1916)
512,
410, 160
[Robinson
N.D.
N.W.
SANDSTROM, Justice,
special-
concurring
I]
ly.
the five
The
Court consists of
III,
The
of
partially relies
6,
2,
by
§
justices,
Art.
elected
N.D. Const.
Insurance,
Inc.,
Crop
v. Northern
6,
7, pro-
Art.
people.
the
N.D. Const.
174,
Al-
181-87
N.W.2d
vides:
by
though I concur in the result reached
the
my
majority,
separately
express
I
write
justices
supreme
the
court shall be
“The
of
III of Swenson was
view
by
for ten-
electors of
state
chosen
majority of
opinion of a constitutional
terms,
justice
year
arranged that
is
so
one
Court.
years.
every
They shall hold
elected
two
duly quali-
until
are
office
their successors
16,
argued on December
Swenson was
fied,
compensation as
and shall receive
24,
1992,
on March
1993. The
and decided
law,
compensation
provided by
of
but the
Erickstad,
opinion
Ralph J.
was authored
any
during
justice
diminished
shall
Judge. A footnote states: “Surro
Surrogate
his
of
term office.”
gate Judge Ralph J. Erickstad was Chief
heard,
1,1993,
duly
and
at the time this case was
elected and
January
Justice
As of
pur
judge
of Jus-
surrogate
qualified Supreme
served as
for this
Court consisted
Levine,
VandeWalle, Mesehke,
27-17-03,
Swen
Neu-
N.D.C.C.”
tices
suant to Section
mann,
Sandstrom.
opinion
n.
The
son at 176
1.
reflects
such,
justice,
question
A former
as
retains no resid-
issue so there would be no
as to the
validity
judgments
might
and orders that
act, any
power to
ual
more than
former
dispute
on pending
during
be issued
cases
governor
public
or
service commissioner.
I,
period.
at
Robinson
N.W.
512.
Spaeth
ex
v. Olson
See State
rel.
ex rel.
Court, ultimately consisting totally
Sinner,
State
judges, following
justices’
district
decla-
Spaeth
ex rel.
v. Olson determined whether
disqualification,
rations of
held the terms and
George
I.
Allen Olson or
A.
was
Sinner
Gov-
justices
governed by
tenures of
the same
days
ernor North Dakota
the first
provisions as other state officers. Robinson
Court, in
of 1985. This
an
authored
II,
515,
None existed in justice disqualification. Swenson. No filed a assignment There was no of the former Chief foregoing reasoning, “Based we justice Justice to act for a with a conflict of that George currently, hold A. is Sinner justice physically interest or for a or mental- and has been since first moment of ly incapacitated. January 1,1985, the Governor the State grant of North The former Chief Justice not a Dakota. We therefore mem- *7 decision, ber of the Court at the time of the original enjoining writ Olson exercis- serving by assignment. and he Only ing powers duties of Office of two of those act any entitled to concurred in Governor of State of North Dakota.” part majority manner to III. Thus a did not Olson at 883-84. The issue was not without pronounce decision III of Swenson. great consequence. Had Olson been entitled provides: N.D.C.C. 27-02-22 act, to continue to he would have filled two majority “The concurrence of the Court, vacancies on this which were subse- judges of necessary court is quently appointments filled of Gover- pronounce judgment. If a nor Sinner. concur, reheard, does not must be but rehearings may no more than two Following the elections of a similar majori- had. If on the rehearing dispute arose majori- as to who constituted a ty judges concur, judg- does ty of this Court. Robinson I State ex ment must be affirmed.” Robinson, rel. Linde v. 35 N.D. (1916) Finally, I note that III of Swenson is newly N.W. 514 [Robinson II]. Three apparently “transitional” justices elected contended took office on lacking majority. a Constitutional Monday first December as had provided justices for first elected after NEUMANN, J., concurs. statehood; outgoing justices contended they continued to serve until Mon-
day January, provided statute then
state officers. I II. Robinson The At-
torney General the Court to asked decide the National executed notes first and second amended counterclaims.1 Security which National loaned the Walds action, Meanwhile, in granted the court $350,000, Security gave about and Walds Security summary judgment National on the security per- interest in certain National first amended Walds’ counterclaim. Final property, including equip- sonal their farm judgment granting Security was entered Na- By crop. May ment and recovery tional from the Walds on the under- promissory Walds had defaulted on debt, lying dismissing with prejudice the notes, them, Security and National sued counterclaim, Walds’ first amended and de- $151,960.94 seeking judgment and fore- nying the Walds’ motion to file a second security personal closure of its in the interest amended counterclaim. property. The Walds contend that the court district answer, initially pro filed a se granting summary judgment erred in on Security generally denying allega- National’s They their first amended counterclaim. ar- Later, tions. the district court allowed the gue genuine that issues material fact exist Walds, counsel, through to file an amended on their claims for the tort of faith bad counterclaim, alleged, answer and which for intentional infliction of emotional distress. substance, parties’ security that agree- Security responds National that the Walds’ proceeds ment covered combine and from genuine amended counterclaim no raised combine; harvest, that the 1991 fact, issues of material because the bank had destroyed by the combine was fire and a duty no to the Walds to release the insurance check proceeds for insurance was issued proceeds from the combine. jointly Walds; Security National Security “intentionally, Summary judgment maliciously attempted and in bad faith” if, appropriate N.D.R.Civ.P. 56 is after view prevent the finishing Walds from their 1991 ing light the evidence most favorable by refusing harvest to release the insurance opposing party, genuine there are no proceeds so the a replace- Walds could obtain conflicting issues of material fact or infer ment combine. The Walds characterized ences which can be drawn their counterclaim as a tort action for bad undisputed facts, only or if the issues to be faith intentional infliction of emotion- questions E.g., resolved of law. Hummel al distress. Clinic, P.C., v. Mid Dakota After discovery, party seeking Walds moved summary judg to file initially a second amended answer coun- ment must show the of a absence terclaim, alleged, substance, which genuine issue of material fact. Union State Woell, National had breached a written Bank v. agreement to security burden, subordinate its inter- Once the movant has met initial so opposing est the Walds could obtain a loan from the party may motion not rest Bank of North Dakota. allegations The district court pleadings, mere or denials in present denied the Walds’ to file a competent motion but must evi admissible counterclaim, granted Security Na- dence comparable affidavit or other summary tional’s judgment motion for on the genuine means to show the existence of a debt, underlying parties Weiss, Wright, allowed the ad- issue material fact. Paul in the district. pending judge 1. That action is before different criminal, Stedman, even or that he has intended to son & Merrick distress, inflict or even that his emotional by “mal- conduct has characterized been Woell, viability of a we considered the ice,” aggravation degree which obligation tort action for breach of plaintiff punitive would entitle the dam- in commercial context. We held good faith ages Liability been for another tort. has existed, that, assuming the tort so found where the conduct ease, proper in because character, outrageous in and so extreme asserting the failed to party tort had degree, beyond possible go as to all bounds duty of a contract or establish the existence