Garaas v. Cass Cnty. Joint Water Res. Dist.

• Decision Date: 20 July 2016
• Docket Number: No. 20150350.,20150350.
• Citation: 883 N.W.2d 436
• Parties: Jonathan T. GARAAS, Appellant v. CASS COUNTY JOINT WATER RESOURCE DISTRICT, a political subdivision of the State of North Dakota, Appellee.
• Court: North Dakota Supreme Court

883 N.W.2d 436

Jonathan T. GARAAS, Appellant

v.CASS COUNTY JOINT WATER RESOURCE DISTRICT, a political subdivision of the State of North Dakota, Appellee.

No. 20150350.

Supreme Court of North Dakota.

July 20, 2016.

Jonathan T. Garaas, Fargo, ND, appellant.

Christopher M. McShane (argued) and Andrew D. Cook (on brief), West Fargo, ND, for appellee.

CROTHERS

, Justice.

[¶ 1] Jonathan T. Garaas appeals after a district court entered a judgment of dismissal for lack of subject matter jurisdiction. Garaas argues the district court erred dismissing his case because its subject matter jurisdiction was invoked when he filed a notice of appeal in the district court. We conclude the district court did not misapply the law finding the case was not properly brought before the court. The judgment dismissing the case is affirmed.

I

[¶ 2] On May 14, 2015, the Cass County Joint Water District (“District”) ordered the establishment of an assessment district to fund the development, operation and maintenance of a Fargo–Moorhead flood risk management project under N.D.C.C. ch. 61–16.1. On June 12, 2015, Garaas filed with the district court a notice of appeal from the decision of a local governing body under N.D.C.C. § 28–34–01

. On June 16, 2015, a Cass County deputy sheriff served Garaas' notice of appeal on the District's secretary-treasurer, Carol Harbeke Lewis. Lewis is not a member of the District's governing board. On June 18, 2015, attorneys from Ohnstad Twichell, P.C., served Garaas a notice of appearance in the case. On June 25, 2015, the deputy sheriff's return was served on the District's attorneys and filed in the district court.

[¶ 3] On July 2, 2015, the District moved to dismiss the case for lack of jurisdiction. On July 16, 2015, a Cass County deputy sheriff served Garaas' notice of appeal on District board member, Mark Brodshaug. On November 24, 2015, the district court dismissed Garaas' claim for lack of subject matter jurisdiction, finding he failed to perfect his appeal by properly serving the notice of appeal on a board member as required by N.D.C.C. § 28–34–01

. Garaas appeals the district court's judgment of dismissal.

II

[¶ 4] Garaas argues the district court acquired subject matter jurisdiction when he timely filed the notice of appeal. “As a prerequisite to issuing a valid order or judgment, a court must have both subject matter and personal jurisdiction.” Trottier v. Bird, 2001 ND 177, ¶ 5, 635 N.W.2d 157

. “Subject-matter jurisdiction is the court's power to hear and determine the general subject involved in the action....” Albrecht v. Metro Area Ambulance, 1998 ND 132, ¶ 10, 580 N.W.2d 583. “Issues involving subject matter jurisdiction cannot be waived and can be raised sua sponte at any time.” Earnest v. Garcia, 1999 ND 196, ¶ 7, 601 N.W.2d 260.

[¶ 5] “For subject-matter jurisdiction to attach, ‘the particular issue to be determined must be properly brought before the court in the particular proceeding.’ ” Albrecht, 1998 ND 132, ¶ 11, 580 N.W.2d 583

. North Dakota Rule of Civil Procedure 12(h)(3) compels the district court to dismiss an action whenever it appears the court lacks jurisdiction of the subject matter. In this case, the district court dismissed the appeal finding subject matter jurisdiction did not attach because Garaas failed to properly bring the action before the court according to the provisions in N.D.C.C. § 28–34–01.

[¶ 6] “When jurisdictional facts are not disputed, the issue of subject matter jurisdiction is a question of law, which we review de novo.” In re Estate of Vaage, 2016 ND 32, ¶ 14, 875 N.W.2d 527

. Section 28–34–01, N.D.C.C., provides in relevant part:

“Appeals from local governing bodies—Procedures.

This section, to the extent that it is not inconsistent with procedural rules adopted by the North Dakota supreme court, governs any appeal provided by statute from the decision of a local governing body, except those court reviews provided under sections 2–04–11 and 40–51.2–15. For the purposes of this section, ‘local governing body’ includes any officer, board, commission, resource or conservation district, or other political subdivision. Each appeal is governed by the following procedure:

1. The notice of appeal must be filed with the clerk of the court within thirty days after the decision of the local governing body. A copy of the notice of appeal must be served on the local governing body in the manner provided by rule 4 of the North Dakota Rules of Civil Procedure

.”

[¶ 7] “The interpretation of a court rule or statute is a question of law that we review de novo.” State v. Chacano, 2012 ND 113, ¶ 10, 817 N.W.2d 369

. We apply principles of statutory construction to ascertain intent when interpreting rules by:

“[L]ooking first to the language of the rule, where words are construed in accordance with their plain, ordinary, and commonly understood meaning. If possible, we construe rules as a whole to give meaning to each word and phrase. We also consider the actual language, its connection with other clauses, and the words or expressions which obviously are by design omitted. In construing statutes and rules, the law is what is said, not what is unsaid, and the mention of one thing implies exclusion of another.”

Sanderson v. Walsh Cty., 2006 ND 83, ¶ 16, 712 N.W.2d 842

(internal quotations and citations omitted).

[¶ 8] Section 28–34–01, N.D.C.C

., “governs any appeal provided by statute from the decision of a local governing body....” Water resource districts are created under N.D.C.C. ch. 61–16 and are defined as “a governmental agency, and a body politic and corporate with the authority to exercise [the] powers specified....” N.D.C.C. § 61–16–06. Chapter 61–16, N.D.C.C., provides a statutory right to appeal their decisions: “An appeal may be taken to the district court from any order or decision of the water resource board by any person aggrieved.” N.D.C.C. § 61–16.1–54. Garaas filed his appeal under N.D.C.C. § 28–34–01 and the parties do not dispute it applies in this case.

[¶ 9] Section 28–34–01(1), N.D.C.C

., by its plain language requires a notice of appeal to be filed with the clerk of court within 30 days of the decision of the local governing body. The District ordered the establishment of the special assessment district on May 14, 2015. Garaas filed a notice of appeal with the clerk of court on June 12, 2015. Garaas properly filed the notice of appeal with the district court within 30 days of the District's decision. Garaas argues this was sufficient to give the district court jurisdiction over the case. However, N.D.C.C. § 28–34–01(1), also requires a copy of the notice of appeal be served on the local governing body “in the manner provided by rule 4 of the North Dakota Rules of Civil Procedure.” N.D.C.C. § 28–34–01(1).

[¶ 10] North Dakota Rule of Civil Procedure Rule 4

provides the procedure and scope of jurisdiction, process and service in North Dakota. See generally N.D.R.Civ.P. Rule 4. With regard to in-state service, N.D.R.Civ.P. Rule 4(d)(2)(E), provides:

“Serving a Municipal or Public Corporation. Service must be made on a city, township, school district, park district, county, or any other municipal or public corporation, by delivering a copy of the summons to any member of its governing board.”

[¶ 11] The District argues, and the district court agreed, Garaas failed to perfect his appeal because N.D.R.Civ.P. Rule 4(d)(2)(E)

required him to serve a District board member and N.D.C.C. § 28–34–01(1) required him to do so within 30 days of the District's decision.

A.

[¶ 12] Garaas first argues N.D.R.Civ.P., Rule 4(d)(2)(E)

does not apply. We hold that it does. A water district is “a governmental agency, and a body politic and corporate....” N.D.C.C. § 61–16–06. Rule 4(d)(2)(E), N.D.R.Civ.P., requires service on a board member for “any ... municipal or public corporation....” Rule 4(d)(2)(E), N.D.R.Civ.P., governs public corporations, which includes the District as a “body politic and corporate.” This Court recognizes a body politic and corporate as a public corporation. See

Ferch v. Housing Authority of Cass County, 79 N.D. 764, 59 N.W.2d 849, 865 (1953) ( “The Housing Authority is created ‘a public body corporate and politic.’ Section 23–1102 NDRC 1943. It is a public corporation for public purposes.”). Similarly, the District, a “body politic and corporate,” is a public corporation for public purposes. This interpretation is consistent with previous actions against a water district. See

Gessner v. City of Minot, 529 N.W.2d 868, 869 (N.D.1995) (“Gessner ... served a summons and complaint on Arden Hamar, Chairperson of the Ward County Water Management District....”). Therefore, N.D.R.Civ.P. Rule 4(d)(2)(E) applies.

B.

[¶ 13] Garaas argues Rule 4(d)(2)(E), N.D.R.Civ.P

., does not itself include time limiting language. He argues the time limiting language contained in N.D.C.C. § 28–34–01(1) only imposes a time limit on filing an action with the clerk of court and not on service of a board member. Garaas seems to propose because N.D.R.Civ.P. Rule 4(d)(2)(E) does not include time limiting language, service on a board member must only be within a reasonable amount of time. See N.D.C.C. § 9–07–22 (In contract law, “[i]f no time is specified for the performance of an act required to be performed, a reasonable time is allowed.”). The District argues that the time limiting language contained in N.D.C.C. § 28–34–01(1) applies to both the filing with the clerk of court and the service on a board member.

[¶ 14] The parties' arguments are rational interpretations of the statute. “A statute is ambiguous if it is susceptible to different, rational meanings.” Locken v. Locken, 2011 ND 90, ¶ 9, 797 N.W.2d 301

(quoting Sauby v. City of Fargo, 2008 ND 60, ¶ 8, 747 N.W.2d 65 ). In determining the legislative intent of an ambiguous statute a court may consider the object sought to be attained, the circumstances under which the statute was enacted, the legislative history, common law or former...