Fibelstad v. Glaser, 930011

• Decision Date: 11 March 1993
• Docket Number: No. 930011,930011
• Citation: 497 N.W.2d 425
• Parties: Percy FIBELSTAD, Petitioner, v. The Honorable Gerald G. GLASER, Judge of the North Dakota District Court, South Central Judicial District; Grant County, a political subdivision of the State of North Dakota; and AgriBank, formerly the Farm Credit Bank of St. Paul, a body corporate, Respondents. Civ.
• Court: North Dakota Supreme Court

Page 425

497 N.W.2d 425

Percy FIBELSTAD, Petitioner, v. The Honorable Gerald G. GLASER, Judge of the North Dakota District Court, South Central Judicial District; Grant County, a political subdivision of the State of North Dakota; and AgriBank, formerly the Farm Credit Bank of St Paul, a body corporate, Respondents.

Civ. No. 930011.

Supreme Court of North Dakota.

March 11, 1993.

James J. Coles of Wheeler Wolf, Bismarck, for petitioner.

Sean O. Smith of Tschider & Smith, Bismarck, for respondent AgriBank, FCB.

Charles S. Miller, Jr. of Fleck, Mather & Strutz, Bismarck, for respondent Grant County.

VANDE WALLE, Chief Justice.

Percy Fibelstad contends that a district court is not complying with our instructions on remand in Fibelstad v. Grant County, 474 N.W.2d 54 (N.D.1991). Fibelstad petitioned this Court to invoke our supervisory power and issue a writ of mandamus compelling the district court to comply. Writ denied.

This case began as a writ of mandamus action by Fibelstad to compel Grant County to assign tax sale certificates to him as a result of his paying delinquent taxes on certain land owned by Laura and Thomas Asbridge. ¹ The mortgagee of the land, Farm Credit Bank [FCB], intervened. At the district court level, Fibelstad's claim was countered by two affirmative defenses proffered by FCB. First, FCB alleged a factual affirmative defense contending that Fibelstad was an agent of Asbridge and therefore a redemptioner rather than a tax purchaser. As a redemptioner, he would have no interest in the land after a successful foreclosure and subsequent issuance of a sheriff's deed to FCB. Second, FCB alleged a legal affirmative defense contending that even if Fibelstad was a tax purchaser, the tax sale conducted by Grant County was invalid for lack of notice. If it was invalid, and if Fibelstad was a tax purchaser, Fibelstad would have no interest in the land because the tax sales in which he allegedly purchased the tax certificates were void and without effect. FCB moved for summary judgment denying the petition for a writ of mandamus on the legal defense; and the district court, assuming for the purposes of the legal defense that Fibelstad was a tax purchaser and not a redemptioner, granted FCB's motion, holding that the tax sale was invalid. Fibelstad appealed the judgment denying his petition for a writ of mandamus.

On appeal, we upheld the invalidity of the tax sale. Fibelstad, supra. As did the district court, we assumed that Fibelstad was a tax purchaser for purposes of the summary judgment motion. Nowhere in the opinion did we explicitly conclude that Fibelstad was a tax purchaser. Pursuant to section 57-45-10, NDCC, we also held that for FCB to continue its pursuit of the land title, it must deposit all delinquent and unpaid taxes to the clerk of the Grant County Court. ²

After the Fibelstad opinion was issued, FCB submitted a motion to the district court requesting permission to deposit funds as required by our opinion and section 57-45-10, NDCC. The court granted the motion on October 11, 1991, requiring $45,664.62 to be deposited.

Fibelstad thereafter sought to amend his pleadings by alleging a number of issues, but focusing on the allegation that when he paid the taxes for the Grant County land, he was acting as a tax purchaser and not as a redemptioner. In its memorandum opinion, the district court noted that it was most unusual that Fibelstad then sought to amend his pleadings, especially since the case had already been to this Court. The district court wrote, "Nevertheless, the judgment [of the Supreme Court] was partial and, as noted in an earlier opinion, left open for decision is the question of whether Mr. Fibelstad was acting on his own or was acting as an agent for Mr. Asbridge. That is the only issue that remains." The district court denied Fibelstad's motion to amend on October 31, 1991.

On November 4, 1991, the district court entered a judgment on remand in accordance with the Fibelstad opinion which contained a Rule 54(b), NDRCivP, order. This judgment is now final and non-appealable.

The question arose as to whether Fibelstad was entitled to a refund of the taxes he paid on the Grant County lands, and the district court endeavored to determine whether Fibelstad was, when paying the taxes on the Grant County land, a tax purchaser or a redemptioner.

Fibelstad moved for summary judgment, arguing that the district court had already determined that he was a purchaser at the tax sale, as opposed to a redemptioner, and that in Fibelstad, the Supreme Court also determined that he was a purchaser rather than a redemptioner. The district court denied the motion on May 7, 1992.

On January 14, 1993, Fibelstad petitioned this Court for a writ of mandamus, requesting we employ our supervisory powers and order the district court to "properly carry out this court's decision" in Fibelstad by reaffirming his role as a tax purchaser and ordering Grant County to refund the tax money he paid on the Grant County land.

Fibelstad notes that when FCB formally intervened in Fibelstad's original action against Grant County, FCB set forth two affirmative defenses--first, a factual defense alleging Fibelstad's status as a redemptioner rather than a tax purchaser, and second, a legal defense alleging the invalidity of the tax sale. Fibelstad now argues that when FCB subsequently moved for summary judgment based upon the legal defense that the tax sale was invalid, it chose to forego its factual defense that Fibelstad was only a redemptioner. Fibelstad contends that although the FCB motion for summary judgment arguably attempted to preserve its factual defense, the judgment in which the district court granted the summary judgment motion was not entitled a "partial summary judgment;" it disposed of all issues in the case and if FCB wished to preserve its right to its factual defense, it should have moved for certification under Rule 54(b), NDRCivP.

Both the district court and this Court assumed Fibelstad to be a tax purchaser, and we further assumed the judgment to be complete, i.e., not needing certification under Rule 54(b), NDRCivP. Indeed, if we had not believed the judgment to be complete, we would have dismissed the appeal for lack of an order under Rule 54(b), NDRCivP. See, e.g., Gissel v. Kenmare Township, 463 N.W.2d 668 (N.D.1990). Rather, we assumed that Fibelstad was indeed a tax purchaser and we ordered FCB to comply with section 57-45-10, NDCC, which deals with refunds made to tax purchasers by counties where tax sales have been found to be invalid. If we had not assumed him to be a tax purchaser, we would not have ordered FCB to deposit all delinquent and unpaid taxes to the county under a statute which was promulgated to afford tax purchasers a refund of the money they have paid under invalid tax sales. Thus, if we do not grant the writ, the district court will proceed to try the factual issues. An appeal will most probably follow, and the result will be a piecemeal adjudication of the case contrary to the purposes of Rule 54(b), NDRCivP.

Our impulse is to conclude that the district court's summary judgment was final and appealable because Fibelstad's capacity as a redemptioner or tax purchaser had been waived or otherwise determined in order for an appealable judgment to be before this Court in Fibelstad absent certification under Rule 54(b), NDRCivP. FCB would therefore be precluded from raising the same issues regarding Fibelstad's status under principles of res judicata, law of the case, and issue preclusion.

Nevertheless, FCB argues that in filing its motion for summary judgment, its position was that the status of Fibelstad was irrelevant. The crux of the case was whether Fibelstad had any interest in the Grant County lands. If he was a redemptioner, he had no interest. If he was a tax purchaser, he had an interest that entitles him to repayment of his moneys from the county under section 57-45-10, NDCC. Under FCB's theory, the sole issue to be resolved by the district court at that time concerned the validity of the tax sale, and if the tax sale was void, Fibelstad's status would have no effect upon the legal conclusions--he would lose regardless of his status. Because FCB's motion for summary judgment, and the district court's judgment, only framed the issue of the validity of the tax sale, FCB contends it did not waive its affirmative factual defense because no facts were presented to or decided by the district court as to Fibelstad's status.

There is little doubt that refund of Fibelstad's tax money necessarily depends upon his status. NDCC Sec. 57-45-12. See also, Chapter 57-23, NDCC; Resolution Trust Corp. v. Dickinson Econo-Storage, 474 N.W.2d 50 (N.D.1991). Furthermore, FCB alleges that because Fibelstad had not previously raised the issue of a refund of the tax money he paid to Grant County, his status was irrelevant, and there was no need for the district court to rule on his status. Therefore, FCB rationalizes, the proceedings currently before the district court to resolve Fibelstad's status are not barred by issue preclusion or law of the case.

Fibelstad's application for a writ of mandamus is a request for this Court to exercise its supervisory jurisdiction. The court's authority to issue a supervisory writ is derived from Article VI, Sec. 2 of the North Dakota Constitution. City of Fargo v. Dawson, 466 N.W.2d 584 (N.D.1991); Odden v. O'Keefe, 450 N.W.2d 707 (N.D.1990). The exercise of our supervisory jurisdiction is discretionary, rare and done only to prevent injustices in extraordinary circumstances where no other remedy is adequate or allowed. Dawson, supra; Odden, supra; Minot Daily News v. Holum, 380 N.W.2d 347 (N.D.1986).

FCB and Grant County did not precisely draw our attention, by a motion to dismiss the appeal for lack of an appropriate Rule 54(b) order or other clearly revealing comment, to the fact that despite the issue of the validity...