Sadek v. Weber

• Decision Date: 15 September 2020
• Docket Number: No. 20190216,20190216
• Citation: 948 N.W.2d 820
• Parties: John SADEK and Tammy Sadek, as surviving parents of Andrew Sadek on behalf of all heirs-at-law, and the Estate of Andrew Sadek, Plaintiffs and Appellants v. Jason WEBER, individually and as a Richland County Sheriff's Deputy and Task Force Officer of the South East Multi County Agency Narcotics Task Force, and Richland County, North Dakota, a political subdivision, Defendants and Appellees
• Court: North Dakota Supreme Court

948 N.W.2d 820

John SADEK and Tammy Sadek, as surviving parents of Andrew Sadek on behalf of all heirs-at-law, and the Estate of Andrew Sadek, Plaintiffs and Appellants

v.Jason WEBER, individually and as a Richland County Sheriff's Deputy and Task Force Officer of the South East Multi County Agency Narcotics Task Force, and Richland County, North Dakota, a political subdivision, Defendants and Appellees

No. 20190216

Supreme Court of North Dakota.

Filed September 15, 2020

Tatum O'Brien (argued) and Timothy M. O'Keeffe (appeared), Fargo, ND, for plaintiffs and appellants.

Corey J. Quinton (argued) and Tyler S. Carlson (appeared), Fargo, ND, for defendants and appellees.

Crothers, Justice.

[¶1] John and Tammy Sadek, the surviving parents of Andrew Sadek, appeal the district court's summary judgment, dismissing their claims against Jason Weber and Richland County. We affirm.

I

[¶2] Defendant Jason Weber is a deputy with the Richland County Sheriff's Office and a member of the South East Multi-County Agency Narcotics Task Force ("SEMCA"). Richland County is Weber's employer and a participating agency in SEMCA. In 2013 Andrew Sadek was a student at the North Dakota State College of Science.

[¶3] In April 2013, two confidential informants purchased small quantities of marijuana from Andrew Sadek on two occasions. On November 21, 2013, officers searched Sadek's dorm room and found a marijuana grinder. At the time of the search, Weber informed Sadek about the felony charges he could face for the two April 2013 marijuana deliveries and told him he could either take the charges or sign up to work as a confidential informant.

[¶4] On November 22, 2013, Sadek met with Weber to discuss becoming a confidential informant. During the interview Weber told Sadek that he was facing two felony charges and one misdemeanor charge. Weber told Sadek the felony charges could result in up to 40 years in prison and a "good possibility" existed he would get some prison time if he did not act as a confidential informant. Weber stated "a lot of this could go away" in exchange for his work as a confidential informant. Sadek agreed to work as a confidential informant, signing a Cooperating Individual Agreement. Weber told Sadek it was important for him not to tell anyone, including other law enforcement, that he was working as an informant.

[¶5] By January 2014 Sadek did three controlled buys of marijuana from two people, but subsequently lost contact with Weber. In April 2014, Weber contacted Sadek, stating that he would pursue the felony charges on the April 2013 drug sales unless Sadek lined up additional buys and that Sadek should ask around if he did not know anyone wanting to buy marijuana. Weber gave Sadek a deadline of May 1, 2014, to get the next deal done.

[¶6] On May 1, 2014, Sadek was reported missing. On June 27, 2014, a body was found in the Red River, later identified as Sadek. When his remains were found, his backpack was tied to him and was full of rocks. The coroner determined Sadek died of a gunshot wound

to the head, but the range of fire was not determined. No determination was made whether the cause of death was homicide, suicide or accidental.

[¶7] The Sadeks sued Weber and Richland County, asserting claims of deceit and negligence. They alleged his death was directly related to his role as a confidential informant. Weber and Richland County moved for summary judgment seeking dismissal of the claims.

[¶8] The district court granted summary judgment in favor of Weber and Richland County and dismissed the case. The court concluded summary judgment was proper on the Sadeks’ claims for deceit because the alleged misrepresentation was a prediction of a future event and was not actionable as a matter of law. The court also granted summary judgment on the Sadeks’ negligence claims, concluding no evidence established the Defendants’ conduct proximately caused Andrew Sadek's death.

[¶9] In granting summary judgment on the negligence claims, the district court held triable issues of fact existed on both whether Weber and Richland County owed a duty of care to Andrew Sadek under N.D.C.C. § 32-12.1-03(3)(g) (providing for potential liability of a political subdivision or its employee under circumstances in which a "special relationship" can be established between the political subdivision and the injured party), and on the applicable standard of care in deciding whether Weber's actions in recruiting and supervising Andrew Sadek as a confidential informant constituted negligence or gross negligence. The district court concluded summary judgment was proper because no evidence created a triable issue of fact about whether Andrew Sadek's death resulted from the Defendants’ alleged negligence in assessing the dangers posed to him as a confidential informant, and in training, warning, and supervising him in that role. The court essentially concluded no evidence established the Defendants’ conduct proximately caused Andrew Sadek's death.

[¶10] Although the Sadeks only appealed from the order granting summary judgment, a subsequent consistent judgment of dismissal was entered. "An order granting summary judgment is not appealable[; however, an] attempted appeal from the order granting summary judgment will ... be treated as an appeal from a subsequently entered consistent judgment, if one exists." Farmers Union Oil Co. v. Smetana , 2009 ND 74, ¶ 7, 764 N.W.2d 665 (citations omitted); see also Ortega v. Sanford Bismarck , 2019 ND 133, ¶ 8, 927 N.W.2d 872. Because a consistent judgment was entered, we treat the Sadeks’ appeal as one from the judgment.

II

[¶11] Our standard for reviewing the district court's summary judgment decision is well established:

"Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record."

Ortega , 2019 ND 133, ¶ 9, 927 N.W.2d 872 (quoting Johnson v. Bronson , 2013 ND 78, ¶ 9, 830 N.W.2d 595 ).

[¶12] Under N.D.R.Civ.P. 56, summary judgment is proper when a party bearing the burden of proof at trial fails to establish the existence of a material factual dispute on an essential element of the claim. Ortega , 2019 ND 133, ¶ 10, 927 N.W.2d 872. When the party resisting a summary judgment motion presents no pertinent evidence on an essential element, it is presumed no such evidence exists. Id. The district court's decision granting summary judgment presents a question of law, which this Court reviews de novo on the entire record. Id.

III

[¶13] The Sadeks argue the district court erred in granting summary judgment dismissing their deceit claims.

[¶14] "In contrast to fraud, deceit is not an action dependent on a contract; it is a tort cause of action, and allows recovery of damages upon proof of an affirmative misrepresentation or suppression of material facts." Bakke v. Magi-Touch Carpet One Floor & Home, Inc. , 2018 ND 273, ¶ 20, 920 N.W.2d 726 ; see also N.D.C.C. §§ 9-10-02, 9-10-03. Under N.D.C.C. § 9-10-03, "[o]ne who willfully deceives another with intent to induce that person to alter that person's position to that person's injury or risk is liable for any damage which that person thereby suffers." A "deceit" under this section means:

"1. The suggestion as a fact of that which is not true by one who does not believe it to be true;

2. The assertion as a fact of that which is not true by one who has no reasonable ground for believing it to be true;

3. The suppression of a fact by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or

4. A promise made without any intention of performing."

N.D.C.C. § 9-10-02. See Kuntz v. State , 2019 ND 46, ¶¶ 43-45, 923 N.W.2d 513.

[¶15] Claims for both fraud and deceit require the same degree of specificity in pleadings under N.D.R.Civ.P. 9(b). Kuntz , 2019 ND 46, ¶ 51, 923 N.W.2d 513. As with deceit, in the context of fraud mere opinion or predictions of future events are not actionable. See Kary v. Prudential Ins. Co. of Am. , 541 N.W.2d 703, 705-06 (N.D. 1996) ; Sperle v. Weigel , 130 N.W.2d 315, 320 (N.D. 1964). While a past or present false representation of a material fact must exist, "a mere expression of an opinion in the nature of a prophecy as to the happening or non-happening of a future event is not actionable." Sperle , at 320.

[¶16] In dismissing the Sadeks’ deceit claim, the district court concluded Weber's state of mind was irrelevant because the alleged misrepresentation constitutes a prediction of a future event and was not actionable as a matter of law. The court rejected the Sadeks’ contention that Weber made other misrepresentations to Andrew Sadek, concluding they failed to comply with N.D.R.Civ.P. 9(b), requiring the complaint to "state with particularity the circumstances constituting fraud." The court noted the only misrepresentation alleged in the complaint was Weber's opinion or prediction about whether Andrew Sadek might be sentenced to prison if the felony charges were actually filed sometime in the future.

[¶17] The Sadeks argue the district court erred in concluding their deceit claims were not pled with sufficient particularity under N.D.R.Civ.P. 9(b) and the court improperly disregarded all the evidence of misrepresentations made by Weber to Andrew Sadek. They contend the complaint, read in its entirety, establishes the...