FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MARCH 24, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 44
Glenn Sidney Solberg, Plaintiff and Appellant
v.
Richard McKennett, Defendant and Appellee
No. 20200207
Appeal from the District Court of Williams County, Northwest Judicial
District, the Honorable Paul W. Jacobson, Judge.
AFFIRMED.
Opinion of the Court, by VandeWalle, Justice, in which Chief Justice Jensen,
and Justices Crothers, McEvers, and Tufte joined. Justice Crothers filed an
opinion concurring specially, in which Chief Justice Jensen joined..
Glenn Solberg, self-represented, Zahl, ND, plaintiff and appellant; submitted
on brief.
Lawrence E. King and Dennis Pathroff, Bismarck, ND, for defendant and
appellee; submitted on brief.
Solberg v. McKennett
No. 20200207
VandeWalle, Justice.
[¶1] Glenn Solberg appealed from a district court judgment dismissing his
complaint against Richard McKennett. The court concluded Solberg’s fraud
and injury to person claims against McKennett were barred by the six-year
statute of limitations. We affirm.
I
[¶2] This action is related to Solberg’s litigation involving the Estate of Lyle
Nelson. See Estate of Nelson, 2018 ND 118,
910 N.W.2d 856; Estate of Nelson,
2015 ND 122,
863 N.W.2d 521. Lyle Nelson was married to Solberg’s mother
Lillian (Solberg) Nelson, who died in 2003. Lyle Nelson died in 2012, and
McKennett was the attorney for the personal representative of Lyle Nelson’s
estate. In June 2013, Solberg filed a petition for allowance of claim against Lyle
Nelson’s estate, asserting that under his mother’s 1985 will and 1997 codicil
he was entitled to 100 mineral acres and had an option to purchase certain
property. The district court dismissed Solberg’s claim, concluding the 100
mineral acres and the option property were never held by Lyle Nelson’s estate
and were never under the control of or owned by Lyle Nelson. We affirmed the
dismissal of Solberg’s claim. Nelson,
2018 ND 118, ¶ 15.
[¶3] In April 2020, Solberg sued McKennett for fraud and injury to person.
Solberg alleged McKennett committed fraud by misleading him during the
probate of Lyle Nelson’s estate and by dismissing his claim against Nelson’s
estate. Solberg requested $400,000 in damages.
[¶4] McKennett moved to dismiss the lawsuit, claiming Solberg’s complaint
did not specify the circumstances constituting fraud. McKennett also argued
Solberg’s lawsuit was barred by the six-year statute of limitations. The district
court converted McKennett’s motion to dismiss into a motion for summary
judgment and dismissed Solberg’s lawsuit. The court concluded Solberg’s
1
claims were time-barred because Solberg was aware of McKennett’s alleged
wrongdoing before April 2014.
II
[¶5] Solberg argues the district court improperly granted summary judgment
in McKennett’s favor.
[¶6] Solberg does not argue the district court erred procedurally by converting
McKennett’s motion to dismiss into a motion for summary judgment. The
standard of review for summary judgments is well established:
Summary judgment is a procedural device under
N.D.R.Civ.P. 56(c) for promptly resolving 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. The
party seeking summary judgment must demonstrate there are no
genuine issues of material fact and the case is appropriate for
judgment as a matter of law. In deciding whether the district court
appropriately granted summary judgment, we view the evidence
in the light most favorable to the opposing party, giving that party
the benefit of all favorable inferences which can reasonably be
drawn from the record. A party opposing a motion for summary
judgment cannot simply rely on the pleadings or on unsupported
conclusory allegations. Rather, a party opposing a summary
judgment motion must present competent admissible evidence by
affidavit or other comparable means that raises an issue of
material fact and must, if appropriate, draw the court’s attention
to relevant evidence in the record raising an issue of material fact.
When reasonable persons can reach only one conclusion from the
evidence, a question of fact may become a matter of law for the
court to decide. A district court’s decision on summary judgment is
a question of law that we review de novo on the record.
Aftem Lake Dev., Inc. v. Riverview Homeowners Ass’n, 2020 ND 26, ¶ 8,
938
N.W.2d 159 (quoting Johnston Land Co., LLC v. Sorenson,
2019 ND 165, ¶ 6,
930 N.W.2d 90). “An action barred by a statute of limitations generally is
2
dismissed under the summary judgment standards of N.D.R.Civ.P. 56.” Ayling
v. Sens, 2019 ND 114, ¶ 9,
926 N.W.2d 147.
[¶7] The statute of limitations for fraud, deceit, and injury to person is six
years. N.D.C.C. § 28-01-16(5), (6); Bullinger Enterprises, LLLP v. Dahl,
2020
ND 63, ¶ 12,
940 N.W.2d 630.1 McKennett was served with the summons and
complaint on April 7, 2020; thus, any alleged wrongdoing occurring before
April 7, 2014, would be time barred.
[¶8] Solberg contends the six-year statute of limitations began to run in 2020.
Determining when a cause of action accrues is normally a question
of fact, but it becomes a question of law when the material facts
are undisputed. The statute of limitations generally begins to run
from the commission of the wrongful act giving rise to the cause of
action, unless an exception applies. The discovery rule is one
exception, and under the discovery rule the accrual of a claim is
postponed until the plaintiff knew, or with the exercise of
reasonable diligence should have known, of the wrongful act and
its resulting injury. We have said, after acquiring knowledge of
facts sufficient to put a person of ordinary intelligence on inquiry,
a party has a responsibility to promptly find out what legal rights
result from those facts, and failure to do so will be construed
against the party. The discovery rule does not require full
knowledge of the extent of an injury; rather, it only requires the
party be aware of an injury.
Lakeview Excavating, Inc. v. Dickey Cty., 2020 ND 67, ¶ 12,
940 N.W.2d 657
(quoting Ayling,
2019 ND 114, ¶ 11).
[¶9] In addition to his allegations against McKennett, Solberg’s 59-page
complaint raised claims against other individuals including Lyle Nelson, the
district court judge, and another attorney. Solberg alleged McKennett’s fraud
started in 2001 when he drafted an estate planning document giving Lyle
1Solberg’s complaint does not specifically allege legal malpractice against McKennett. However, to the
extent the allegations against McKennett could be construed as legal malpractice, those claims have
a two-year statute of limitations under N.D.C.C. § 28-01-18(3).
3
Nelson power of attorney over Lillian (Solberg) Nelson when she was not
competent at the time. Solberg claimed McKennett had a conflict of interest in
the representation of Lyle Nelson’s estate. Solberg alleged that in February
2013 he gave McKennett evidence on a USB drive showing Lyle Nelson’s fraud
involving Lillian (Solberg) Nelson’s estate, but McKennett did not use the
evidence. Solberg asserted McKennett committed fraud by misleading him
about the deadline to file a claim against Lyle Nelson’s estate and by
dismissing Solberg’s claim in April 2013.
[¶10] Under N.D.R.Civ.P. 9(b), “[i]n alleging fraud or mistake, a party must
state with particularity the circumstances constituting fraud or mistake”.
Although Solberg’s complaint does not specify precisely how McKennett’s
actions were fraudulent, Solberg’s allegations against McKennett are similar
to those made in his 2013 petition for allowance of claim filed in Lyle Nelson’s
probate case. On the basis of the dates provided in Solberg’s complaint, Solberg
was aware of McKennett’s alleged wrongdoing before April 7, 2014. Solberg
was aware of facts sufficient to put him on notice of a potential claim against
McKennett.
[¶11] We conclude the statute of limitations barred Solberg’s fraud and injury
to person claims against McKennett. The district court did not err in granting
McKennett’s motion for summary judgment.
III
[¶12] The judgment dismissing Solberg’s complaint is affirmed.
[¶13] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Crothers, Justice, concurring specially.
[¶14] I agree with the majority opinion and have signed it. I write separately
to maintain the distinction between fraud and deceit.
4
[¶15] Glenn Solberg labels his claims for relief as ones for “fraud” and “injury
to person.” Majority opinion, ¶ 1. For purposes of this case, we adopt those
labels without substantive analysis whether he advances a claim for “fraud” or
“deceit.” Reviewing the complaint reveals Solberg sued McKennett for
misleading him during the probate of Lyle Nelson’s estate, and for rejecting his
claim against the estate. Majority opinion, ¶ 3. This Court recently explained:
Generally, N.D.C.C. ch. 9-03 defines fraud and applies in
deciding whether parties have the necessary consent for the
formation of a contract. See N.D.C.C. §§ 9-03-04 (when consent
deemed voidable); 9-03-07 (fraud classified); 9-03-08 (actual fraud
defined); 9-03-09 (constructive fraud defined); 9-03-10 (actual
fraud is a question of fact). When fraud is perpetrated to induce a
party to enter into a contract, rescission of the contract is the
remedy. See Heart River Partners v. Goetzfried, 2005 ND 149, ¶ 21,
703 N.W.2d 330. “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.
Kuntz v. State,
2019 ND 46, ¶ 43,
923 N.W.2d 513.
[¶16] Like in many cases where the plaintiff asserts “fraud,” “[t]his is an action
for deceit, not for rescission. There is a vast difference between the actions, and
this difference must be constantly kept in mind in considering this case.”
Gunderson v. Havana-Clyde Mining Co.,
22 N.D. 329,
133 N.W. 554, 555
(1911); Erickson v. Brown,
2008 ND 57, ¶¶ 70-74,
747 N.W.2d 34 (Crothers, J.,
dissenting).
[¶17] Even though the majority opinion refers to the claims as “fraud,” and
impose the higher pleading standard for a fraud claim, the result is the same
for deceit. Kuntz,
2019 ND 46, ¶ 51 (“We have recognized that fraud and deceit
are distinct but similar concepts. To the extent Haugrud,
2017 ND 262, ¶ 14,
903 N.W.2d 537, suggests N.D.R.Civ.P. 8(a)(1) applies, we clarify that a deceit
claim requires the same degree of specificity in pleadings as a claim for fraud
5
under N.D.R.Civ.P. 9(b).”). Therefore, the result here is correct even though
the plaintiff incorrectly labeled the claim.
[¶18] Daniel J. Crothers
Jon J. Jensen, C.J.
6
