Roll v. Keller, 10375
| Decision Date | 21 July 1983 |
| Docket Number | No. 10375,10375 |
| Parties | Ted ROLL and Frances Roll, Plaintiffs and Appellees, v. Ralph J. KELLER, Defendant and Appellant. Civ. |
| Court | North Dakota Supreme Court |
Zuger & Bucklin, Bismarck, for plaintiffs and appellees; argued by Murray G. Sagsveen, Bismarck.
Vogel Law Firm, Mandan, for defendant and appellant; argued by Joseph A. Vogel, Jr., Mandan.
Ralph J. Keller (Keller) appealed from a partial summary judgment against him.
Ted Roll and Keller owned property as a partnership for Sun Valley Mobile Home Court which was subdivided and platted as Valley Court Addition and Valley Park Addition. A sewer system was installed in the Valley Court Addition for a mobile home court. A stub of the sewer system extended into Valley Park Addition for future development.
A partnership disagreement developed and litigation was initiated to dissolve the partnership which resulted in a stipulated settlement agreement which transferred Valley Park Addition to Roll and Valley Court Addition to Keller. Thereafter Keller cut the sewer line and plugged the stub running to Valley Park.
Roll then brought an action against Keller alleging that Keller intentionally interfered with the sewer service easement in a deliberate attempt to diminish the value of Valley Park Addition, and seeking general and punitive damages for severing and plugging the sewer stub line. Keller moved to dismiss Roll's complaint for failure to state a claim or in the alternative for summary judgment in his favor. Roll moved for a partial summary judgment on the issue of liability. The court, after hearing the motions, concluded that the transfer of the property from the partnership to each individual created an implied easement for the use of the sewer and granted partial summary judgment in favor of Roll on the issue of liability. The trial court issued an appropriate Rule 54(b), NDRCivP order, and Keller appealed.
Keller, on appeal, raised two issues. First, he contended that the stipulated settlement agreement absolved him from liability for severing and plugging the sewer system. Second, he argued that an implied easement for the benefit of Valley Park Addition to use the sewer system in Valley Court Addition was not automatically created in favor of Valley Park Addition when it was severed from Valley Court Addition.
Prior to discussing these issues, we recognize that the instant appeal is from a partial summary judgment, and, consequently, we must consider those issues within the framework of our laws on summary judgment.
Summary judgment is a procedural device designed to dispose of a legal conflict on the merits without a trial if there is no dispute as to material facts or where only a question of law is involved. NDRCivP 56; e.g., Sheets v. Letnes, Marshall & Fiedler, Ltd., 311 N.W.2d 175 (N.D.1981).
The party moving for summary judgment must demonstrate there is no genuine issue of material fact. Winkjer v. Herr, 277 N.W.2d 579 (N.D.1979). Summary judgment is inappropriate if inferences reasonably deducible from undisputed facts are conflicting. Herman v. Magnuson, 277 N.W.2d 445 (N.D.1979).
Regarding the first issue, Keller claimed that the stipulation and settlement entered into between the parties released and discharged him from any claim or obligation, demand or action of any kind whatsoever. The agreement, dated 6 November 1981, provides, in part, as follows:
Significantly, the severing, removal of the stub, and plugging took place after the stipulated settlement agreement was entered into on 6 November 1981.
A stipulation is contractual in nature and its interpretation is a question of law for the court to decide. Dvorak v. Dvorak, 329 N.W.2d 868 (N.D.1983).
The stipulated settlement agreement clearly indicates that it covered matters which arose or emanated out of previous transactions or failure to comply with previous agreements, and we do not believe it can be construed to cover any claim or action in the future. A stipulation not to be held responsible for any acts or torts in the future is against public policy and cannot withstand a legal test. See, NDCC Sec. 9-08-02. We conclude that the stipulated settlement agreement cannot be construed to apply to Keller's actions in removing the stub and plugging the sewer line.
Regarding the implied easement, Keller contended that an implied easement was not automatically created in favor of the Rolls when the...
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