Dimond v. STATE EX REL. STATE BD.

• Decision Date: 24 December 2001
• Docket Number: No. 20010154, No. 20010155.
• Citation: 637 N.W.2d 692,2001 ND 208
• Parties: Mark DIMOND, Plaintiff and Appellant, v. STATE of North Dakota, by and through the STATE BOARD OF HIGHER EDUCATION, Defendant and Appellee.
• Court: North Dakota Supreme Court

637 N.W.2d 692

2001 ND 208

Mark DIMOND, Plaintiff and Appellant, v. STATE of North Dakota, by and through the STATE BOARD OF HIGHER EDUCATION, Defendant and Appellee.

Nos. 20010154, 20010155.

Supreme Court of North Dakota.

December 24, 2001.

Rehearing Denied January 18, 2002.

Lynn M. Boughey, Boughey Law Firm, Minot, for plaintiff and appellant.

Monte L. Rogneby (argued), and John C. Kapsner, Vogel Law Firm, Bismarck, for defendant and appellee.

VANDE WALLE, Chief Justice.

[¶ 1] Dr. Mark Dimond appealed a summary judgment dismissing his breach of contract action against the State of North Dakota, by and through the State Board of Higher Education ("Board"). We conclude Dimond's action against the Board is barred by the three-year statute of limitations in N.D.C.C. § 28-01-22.1, and we affirm.

I

[¶ 2] Dimond was a tenured music professor at Minot State University, a public university under the Board's control. In May 1994, Dr. Joseph Hegstad, Chair of the Music Division at the university, advised Dimond that Hegstad intended to recommend Dimond's dismissal for cause to the university president, Dr. Eric Shaar. In May 1994, Shaar notified Dimond of his dismissal for adequate cause under the Board's personnel policies. Shaar informed Dimond the cause for dismissal was demonstrated incompetence in teaching, substantial and manifest neglect of duty, and personal conduct which substantially impaired Dimond's fullfillment of institutional responsibilities. Dimond exhausted the procedures for internal administrative review of his dismissal, and in May 1996, the Board adopted an administrative law judge's recommendation to uphold the dismissal.

[¶ 3] In August 1997, Dimond commenced a breach of contract and tort action against the Board. The trial court denied the Board's motion to dismiss. In Dimond v. State ex rel. State Bd. of Higher Educ., 1999 ND 228, ¶¶ 18, 20-23, 603 N.W.2d 66, we exercised our supervisory jurisdiction and held (1) the trial court lacked subject matter jurisdiction to hear Dimond's breach of contract claim because he failed to first present it to the Board as required by N.D.C.C. § 32-12-03, and (2) Dimond's tort claim was barred either by sovereign immunity or by his failure to present it to the office of management and budget within one hundred and eighty days after the alleged injury as required by N.D.C.C. § 32-12.2-04. We directed the trial court to dismiss Dimond's breach of contract claim without prejudice and his tort claim with prejudice. Dimond, at ¶ 26.

[¶ 4] In May 2000, after Dimond presented his contract claim to the Board as required by N.D.C.C. § 32-12-03, he initiated this breach of contract action against the Board. The Board moved for summary judgment, claiming Dimond's action was barred by the three-year statute of limitations in N.D.C.C. § 28-01-22.1, and sufficient undisputed facts established, as a matter of law, the Board terminated Dimond for adequate cause. Dimond resisted the Board's motion, arguing the six-year statute of limitations for contract claims in N.D.C.C. § 28-01-16 applied to his action and there were disputed issues of material fact about whether he was terminated for adequate cause. The parties agreed to consolidate this action with the prior action for purposes of the summary judgment motion to allow the parties to use the testimony at the administrative hearing in lieu of affidavits. The trial court granted the Board summary judgment, concluding (1) Dimond's action was barred by the three-year statute of limitations in N.D.C.C. § 28-01-22.1, and, (2) reasonable minds could reach only one conclusion from the undisputed facts-Dimond was both insubordinate and lacking in his institutional responsibilities, and as a matter of law, there was adequate cause for his dismissal.

[¶ 5] Dimond moved for reconsideration, arguing his May 2000 complaint was a supplemental pleading that related back to his August 1997 complaint for purposes of the statute of limitations. Dimond also moved to amend his August 1997 complaint. The court denied Dimond's motions to reconsider and to amend his August 1997 complaint.

II

[¶ 6] We review Dimond's appeal in the posture of summary judgment under N.D.R.Civ.P. 56, which

is a method for promptly and expeditiously disposing of a controversy without trial if either party is entitled to a judgment as a matter of law and if no dispute exists as to either the material facts, or the inferences to be drawn from undisputed facts, or if resolving factual issues would not alter the results. A district court deciding a motion for summary judgment is required to view the evidence in the light most favorable to the resisting party. Although the party seeking summary judgment bears the initial burden of showing there is no genuine issue of material fact, the party opposing the motion may not simply rely upon the pleadings or unsupported allegations. Rather, the resisting party must present competent admissible evidence by affidavit or other comparable means raising an issue of material fact and must, if appropriate, draw the court's attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact. Whether the district court properly granted summary judgment is a question of law subject to de novo review.

Rogstad v. Dakota Gasification Co., 2001 ND 54, ¶ 10, 623 N.W.2d 382 (citations omitted).

III

[¶ 7] Dimond argues the trial court erred in deciding his breach of contract action was barred by the three-year statute of limitations in N.D.C.C. § 28-01-22.1, which provides:

When not otherwise specifically provided by law, an action against the state or its employees and officials acting within the scope of their employment or office must be commenced within three years after the claim for relief has accrued. For purposes of this section, the claim for relief is deemed to have accrued at the time it is discovered or might have been discovered in the exercise of reasonable diligence. This may not be construed as a waiver of immunity.

Dimond argues N.D.C.C. § 28-01-22.1 does not apply to his breach of contract action, and the applicable statute of limitations for his claim is six years under N.D.C.C. § 28-01-16.¹ Relying on Burr v. Kulas, 1997 ND 98, 564 N.W.2d 631, Dimond argues the "[w]hen not otherwise specifically provided by law" language in N.D.C.C. § 28-01-22.1 means that statute does not apply if another statute provides a statute of limitations for the action, and N.D.C.C. § 28-01-16(1) provides a six-year statute of limitations for an action upon a contract. He argues if there is a question about which statute of limitations applies, the longer time generally applies.

[¶ 8] The interpretation of a statute is a question of law, which is fully reviewable on appeal. Matter of Estate of Zimmerman, 2001 ND 155, ¶ 14, 633 N.W.2d 594. The primary purpose of statutory construction, including the interpretation of statutes of limitation, is to ascertain legislative intent. See O'Fallon v. Pollard, 427 N.W.2d 809, 811 (N.D.1988)

. Whenever fairly possible, we construe statutes relating to the same subject matter to give effect to both. Id. In construing statutes of limitation, we have often relied on the canon of construction that a specific statutory provision controls a more general provision. See Olson v. University of North Dakota, 488 N.W.2d 386, 390 (N.D. 1992); O'Fallon, at 811.

[¶ 9] In Burr, 1997 ND 98, ¶ 12, 564 N.W.2d 631 (Burr II), we held the seven-year statute of limitations in N.D.C.C. § 12.1-06.1-05(7), rather than the three-year statute of limitations in N.D.C.C. § 28-01-22.1, applied to a plaintiff's action under North Dakota's Racketeer Influenced and Corrupt Organizations Act against state employees acting in their personal capacities. In Burr v. Kulas, 532 N.W.2d 388, 394 (N.D.1995) (Burr I), an earlier appeal in the same case, we had held the plaintiff's claims against the State and the named individuals, in their official capacities, were barred by the doctrine of sovereign immunity. We remanded the plaintiff's claims against the named defendants, in their personal capacities, for further proceedings. Id. On remand, the trial court concluded the plaintiff's claims against the named defendants, in their personal capacities, were barred by the three-year statute of limitations in N.D.C.C. § 28-01-22.1. Burr II, at ¶ 7. In Burr II, at ¶ 10, we said the only claims remaining after Burr I were claims against the named defendants acting in their personal capacities and not within the scope of their employment. Because the plaintiff alleged the defendants were acting outside the scope of their employment and N.D.C.C. § 28-01-22.1 applies only to state employees "acting within the scope of their employment," we concluded the three-year statute of limitations in N.D.C.C. § 28-01-22.1 did not apply to the plaintiff's claim against the defendants in their personal capacities. Burr II, at ¶¶ 10-12.

[¶ 10] In O'Fallon, 427 N.W.2d at 810-11, we considered whether a two-year statute of limitations for assault, battery, and false imprisonment actions, or a three-year statute of limitations for actions against political subdivisions applied to an assault, battery, and false imprisonment action against officers of a political subdivision. We concluded:

It would stand the legislative intent on its head to conclude that the enactment of the three-year statute of limitation under Section 32-12.1-10, N.D.C.C., was intended to extend the time in which actions could be brought against a political subdivision although a shorter statute of limitation applied to other defendants. Section 32-12.1-10, N.D.C.C., specifies the maximum time in which an action may be brought against a political subdivision. It does not apply where a more restrictive statute of limitation is applicable.

Thus, we conclude, as did

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