Alliance Pipeline L.P. v. Smith

• Decision Date: 18 July 2013
• Docket Number: No. 20120367.,20120367.
• Parties: ALLIANCE PIPELINE L.P., a Delaware limited partnership, Plaintiff and Appellee v. Leonard SMITH and Ione Smith, Defendants and Appellants.
• Court: North Dakota Supreme Court

833 N.W.2d 464

2013 ND 117

ALLIANCE PIPELINE L.P., a Delaware limited partnership, Plaintiff and Appellee

v.Leonard SMITH and Ione Smith, Defendants and Appellants.

No. 20120367.

Supreme Court of North Dakota.

July 18, 2013.

Michael D. Schoepf (argued) and Lawrence Bender (on brief), Bismarck, N.D., for plaintiff and appellee.

Robert S. Rau, Minot, N.D., for defendants and appellants.

KAPSNER, Justice.

[¶ 1] Leonard and Ione Smith appeal from an order denying their motion for supplemental findings or for reconsideration of an order granting Alliance Pipeline's petition under N.D.C.C. § 32–15–06 to enter the Smiths' land for examinations and surveys. We conclude the district court did not abuse its discretion in denying their motion. We affirm.

I

[¶ 2] On April 13, 2012, Alliance served the Smiths with a summons, petition, and supporting documents under N.D.C.C. § 32–15–06 to enter their farmland in Renville County, alleging Alliance needed to make preliminary examinations and surveys necessary for federal regulatory approval to construct a proposed seventy-nine mile natural gas pipeline project from a processing facility near Tioga to Alliance's pipeline system near Sherwood. Alliance asserted it was required to obtain a certificate of public convenience and necessity from the Federal Energy Regulatory Commission before constructing the pipeline project, which required various field surveys of the proposed pipeline route to gather information required to assess the suitability of that route. Alliance stated it had received permission to enter land to conduct necessary surveys from more than ninety percent of the affected landowners, but the Smiths refused to allow access to their land. Alliance claimed it needed access to the Smiths' land to complete the field surveys required as part of the process for obtaining the certificate of public convenience and necessity and, upon issuance of that certificate by the Commission, Alliance would have the power of eminent domain to acquire a right of way for the project under 15 U.S.C. § 717f(h). Alliance asserted because it was in the category of persons authorized by law to seek eminent domain, it was entitled to a court order permitting entry on the Smiths' land to conduct the examinations and surveys under N.D.C.C. § 32–15–06 and Square Butte Elec. Coop. v. Dohn, 219 N.W.2d 877 (N.D.1974).

[¶ 3] Alliance thereafter obtained a time for a hearing, and on April 20, 2012, Alliance mailed the Smiths a notice of hearing on the petition to enter their land, which stated the hearing was scheduled for May 8, 2012. On May 1, the Smiths responded with a request to deny Alliance's application, claiming Alliance did not have authority to enter their land to conduct surveys and seeking attorney fees under N.D.C.C. § 32–15–32 for all proceedings. Alliance replied on May 4, and after the evidentiary hearing, the district court issued a May 15, order deciding it had jurisdiction under N.D.C.C. §§ 27–05–06 and 32–15–06 and Alliance was within the category of persons entitled to use eminent domain to acquire property for a public use for the pipeline project and was authorized to enter the Smiths' land to conduct pre-condemnation examinations and surveys, subject to certain conditions and a $50,000 bond to compensate the Smiths for injuries resulting from Alliance's negligence, wantonness, or malice in conducting the surveys.

[¶ 4] The district court's May 15, 2012, order was filed on May 16, and Alliance mailed a notice of entry of the order to the Smiths on May 18. In a motion dated June 15, 2012, the Smiths sought supplemental findings or reconsideration under N.D.R.Civ.P. 52(b) and N.D.R.Civ.P. 59 and 60. The Smiths mailed their motion to Alliance on June 15, 2012, and the motion was stamped “filed” in the district court on June 19, 2012.

[¶ 5] The district court thereafter issued a July 30, 2012, order denying the Smiths' motion for reconsideration. The court concluded the Smiths' condemnation arguments were not applicable to the proceeding for preliminary examinations and surveys, the Smiths failed to demonstrate they were entitled to attorney fees, the Smiths' request for a jurisdictional ruling about a future condemnation action was premature, the Smiths' request for additional limitations on Alliance's access to the property was moot because the surveys had been completed, and the Smiths failed to demonstrate the findings should be altered or omitted. The Smiths appealed from the July 30, order denying their motion.

II

[¶ 6] The Smiths have moved to strike or to “recast” Alliance's appellate brief. They claim Alliance's brief “contains matters and reference to matters not in the record,” including subsequent federal regulatory proceedings before the Federal Energy Regulatory Commission for approval of the pipeline project, federal judicial condemnation proceedings by Alliance against the Smiths, and North Dakota district court proceedings under N.D.C.C. § 32–15–06 involving other parties.

[¶ 7] The subsequent federal proceedings provide context for Alliance's mootness claim, which the parties have an obligation to advise this Court about under N.D.R.App.P. 42(c). Alliance cited several other North Dakota district court proceedings brought under N.D.C.C. § 32–15–06 in its district court reply brief in support of its petition to enter the Smiths' land. A court may take notice of those other legal proceedings as legislative facts because they have relevance to legal reasoning in the formulation of a legal principle for a judicial ruling. See City of Bismarck v. McCormick, 2012 ND 53, ¶ 12, 813 N.W.2d 599 (explaining difference under N.D.R.Ev. 201 between judicial notice of “adjudicative facts” that are normally subject to proof by formal introduction of evidence and “legislative facts” that aid the court in the interpretation and application of law and policy and may be freely noticed by the court outside the procedure required by N.D.R.Ev. 201). Moreover, those other administrative and judicial proceedings have only limited relevance to the propriety of the examinations and surveys authorized in this case. We deny the Smiths' motion to strike or “recast” Alliance's appellate brief.

III

[¶ 8] The Smiths appealed “from the whole of the Order Denying [the Smiths'] Motion for Supplemental Findings or Reconsideration dated July 30, 2012,” and they have not appealed from the district court's May 15, 2012, order permitting Alliance to enter their land for examinations and surveys. The Smiths' motion for supplemental findings or reconsideration cited N.D.R.Civ.P. 52(b), N.D.R.Civ.P. 59, and N.D.R.Civ.P. 60.

[¶ 9] We have held an order on a motion brought under N.D.R.Civ.P. 52(b) is not appealable. Lang v. Lang, 1997 ND 17, ¶ 6, 558 N.W.2d 859. To the extent the Smiths moved for amended or additional findings under N.D.R.Civ.P. 52(b), the district court's order denying their motion is not appealable.

[¶ 10] The Smiths' motion for reconsideration also cited N.D.R.Civ.P. 59 and N.D.R.Civ.P. 60. We have said motions for reconsideration may be treated like motions to alter or amend judgments under N.D.R.Civ.P. 59(j), or for relief from a judgment under N.D.R.Civ.P. 60(b). Waslaski v. State, 2013 ND 70, ¶ 7, 830 N.W.2d 228;Dvorak v. Dvorak, 2001 ND 178, ¶ 9, 635 N.W.2d 135;Woodworth v. Chillemi, 1999 ND 43, ¶ 7, 590 N.W.2d 446. We have exercised our appellate jurisdiction to review orders denying timely motions under N.D.R.Civ.P. 59(j) and 60(b) if the order is clearly intended to be final. See Waslaski, at ¶ 7;Dvorak, at ¶¶ 9–13;Woodworth, at ¶ ¶ 7–8;Austin v. Towne, 1997 ND 59, ¶¶ 7–8, 560 N.W.2d 895.See alsoN.D.C.C. § 28–27–02 (authorizing appeals from enumerated orders).

[¶ 11] Here, the Smiths have not appealed from the district court's May 15, 2012, order. However, the order denying the Smiths' subsequent motion was a final determination of their claims and is appealable. See Waslaski, 2013 ND 70, ¶ 7, 830 N.W.2d 228. We nevertheless must consider whether their motion for reconsideration of the May 15, order was timely under either N.D.R.Civ.P. 59(j) or N.D.R.Civ.P. 60(b). See Waslaski, at ¶¶ 8–9.

[¶ 12] A motion under N.D.R.Civ.P. 59(j) must be served and filed no later than 28 days after notice of entry of the judgment. Here, Alliance mailed a notice of entry of the May 15, 2012, order to the Smiths on May 18, which, after adding three days for service by mail under N.D.R.Civ.P. 6(e), required the Smiths' motion for reconsideration to be served and filed by June 18, 2012. The Smiths' motion was mailed to Alliance on June 15, 2012, but was stamped “filed” with the court on June 19, 2012. The Smiths' motion was not served and filed no later than 28 days after notice of entry of the May 15, order and was not timely. Under N.D.R.Civ.P. 6(b)(2), a district court cannot extend the time to act under N.D.R.Civ.P. 59(j), and we presume to the extent the Smiths intended their motion to be considered under N.D.R.Civ.P. 59(j), it was denied by the district court as untimely. See Waslaski, 2013 ND 70, ¶ 8, 830 N.W.2d 228.

[¶ 13] Although the Smiths have not explicitly identified a subdivision of N.D.R.Civ.P. 60(b) applicable to their claims, N.D.R.Civ.P. 60(b) authorizes relief if the motion is made within a reasonable time or, for N.D.R.Civ.P. 60(b)(1), (2) or (3), no more than a year after notice of entry of the order. N.D.R.Civ.P. 60(c)(1). To the extent the Smiths' motion was made under N.D.R.Civ.P. 60(b), the motion was timely for purposes of consideration by the district court. See Waslaski, 2013 ND 70, ¶ 9, 830 N.W.2d 228. We therefore consider the Smiths' arguments on appeal in the context of a motion under N.D.R.Civ.P. 60(b), which, as relevant to the Smiths' claims, authorizes relief if the judgment is void or for any other reason justifying relief. N.D.R.Civ.P. 60(b)(4) and (6). A district court's denial of a motion for reconsideration under N.D.R.Civ.P. 60(b) is...