Westerso v. Rustad, 930348

• Decision Date: 15 June 1994
• Docket Number: No. 930348,930348
• Citation: 517 N.W.2d 404
• Parties: David W. WESTERSO, Plaintiff and Appellant, v. Gerald RUSTAD, Dolores Harstad, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 404

517 N.W.2d 404

David W. WESTERSO, Plaintiff and Appellant, v. Gerald RUSTAD, Dolores Harstad, Defendants and Appellees.

Civ. No. 930348.

Supreme Court of North Dakota.

June 15, 1994.

David W. Westerso, pro se on brief.

Cathy Howe Schmitz of Schmitz Law Office, Williston, for defendant and appellee Dolores Harstad.

Gerald Rustad, pro se.

SANDSTROM, Justice.

David W. Westerso appeals from a summary judgment dismissing his complaint against Dolores Harstad and Gerald Rustad. The district court concluded Westerso's claims were barred by the statute of limitations.

We affirm.

I

David Westerso and Dolores Harstad were divorced in 1973. Gerald Rustad represented Harstad in the divorce proceeding. Westerso and Harstad had entered into a marital termination agreement, which divided their marital estate. The agreement provided:

"7. That the mutual funds in the joint names of the parties shall continue until sold, at which time the proceeds shall be divided equally."

Westerso claims he never agreed to equally divide the mutual funds, and the above-quoted provision was not part of the agreement he signed. Westerso alleges the marital termination agreement was altered after he signed it, and, at the time of the divorce, he did not receive a copy of the agreement or a copy of the divorce judgment incorporating the agreement.

Westerso sued Harstad and Rustad claiming fraud, criminal conversion, and breach of contract arising out of the 1973 divorce judgment. Harstad moved for summary judgment claiming Westerso's claims were barred by the statute of limitations. After a hearing in which the trial court took judicial notice of the divorce file, the trial court entered summary judgment against Westerso. The trial court concluded Westerso knew the contents of the divorce agreement at least by 1980, and therefore, Westerso's claims were barred by the statute of limitations.

Westerso appeals. We have jurisdiction under Art. VI, Sec. 6, N.D. Const., and N.D.C.C. Sec. 28-27-02. The appeal is timely under Rule 4(a), N.D.R.App.P.

II

In Ellingson v. Knudson, 498 N.W.2d 814, 817 (N.D.1993), we summarized the standard of review governing summary judgment:

"Under Rule 56, N.D.R.Civ.P., a summary judgment should be granted only if it appears that there are no issues of material fact or any conflicting inferences which may be drawn from those facts. The party seeking summary judgment has the burden to clearly demonstrate that there is no genuine issue of material fact. In considering a motion for a summary judgment, the court may examine the pleadings, depositions, admissions, affidavits, interrogatories, and inferences to be drawn from the evidence to determine whether summary judgment is appropriate. The court must view the evidence in a 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 evidence. Courts must also consider the substantive standard of proof at trial when ruling on a motion for summary judgment." (Citations omitted.)

III

Actions based on fraud must begin within six years after the claim for relief accrued. N.D.C.C. Sec. 28-01-16(6). A claim of fraud accrues when the aggrieved party discovers the facts constituting the fraud. N.D.C.C. Sec. 28-01-16(6). Phoenix Assur. Co. of Canada v. Runck, 366 N.W.2d 788, 791 (N.D.1985). Westerso filed his complaint on March 16, 1993. Therefore, if Westerso knew of the allegedly altered agreement, or the divorce judgment incorporating the agreement, before March 16, 1987, his cause of action is barred by the statute of limitations.

After reviewing the entire record, including the original divorce file, we conclude Westerso's cause of action accrued prior to March 16, 1987, and therefore, summary judgment was appropriate.

The divorce file contains several documents which reflect Westerso's knowledge of the divorce judgment before 1987. The file contains a registered mail receipt filed immediately after the divorce judgment. The receipt shows on July 18, 1973, five days after the divorce judgment was entered, Westerso signed for a letter sent by the law firm of Anseth & Rustad. Although the divorce file does not contain an affidavit of mailing, the receipt appears to reflect that the divorce judgment was mailed to Westerso.

Westerso's knowledge of the contents of the divorce judgment is also established from his April 15, 1975, motion to modify the divorce judgment. Although the motion was unrelated to the mutual funds, it shows Westerso knew the contents of the divorce judgment as early as 1975.

The divorce file also contains a letter from Westerso to the Williams County State's Attorney, filed on February 20, 1985, explaining why Westerso had stopped making child support payments. In the letter, Westerso recognizes Harstad's claim to half of the proceeds of the mutual funds. The letter states, in part:

"I had $3000 invested in a Hamilton HDA mutual fund before I met her [Harstad]. In 1971, ... I sold it and reinvested the money in three other funds to be used for college expenses for [our two children]. This is how I lost control of the other $1000 as Mrs. Harstad's name was put on it as joint...