Filed 07/22/20 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 159
Dustin Laufer, Plaintiff and Appellant
v.
Warren G. Doe, Defendant and Appellee
No. 20200001
Appeal from the District Court of Adams County, Southwest Judicial District,
the Honorable Dann E. Greenwood, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Erin L. Melling (argued), and Aaron W. Roseland (on brief), Hettinger, ND, for
plaintiff and appellant.
Paul R. Aamodt, Minneapolis, MN, for defendant and appellee.
Laufer v. Doe
No. 20200001
Crothers, Justice.
[¶1] Dustin Laufer appeals from a judgment dismissing his complaint
alleging property damage caused by Warren Doe’s agricultural chemical
application. Laufer argues the district court misapplied the law by dismissing
his claim for failing to comply with statutory notice requirements. We affirm,
concluding Laufer was required to strictly comply with the notice requirements
and the district court did not err by dismissing Laufer’s complaint.
I
[¶2] In November 2018, Laufer sued Doe, alleging Laufer’s crops were
damaged when Doe sprayed a neighboring field with herbicide and the
herbicide drifted onto Laufer’s land. In October 2019, Doe moved to dismiss the
action for failure to comply with N.D.C.C. § 4.1-33-18. Doe argued Laufer was
required to notify him under N.D.C.C. § 4.1-33-18(1) by certified mail of the
alleged damages to his crops, and Laufer did not comply with the statutory
notice requirements.
[¶3] Laufer opposed the motion, arguing N.D.C.C. § 4.1-33-18 does not apply
because he did not bring the action under N.D.C.C. ch. 4.1-33, the Agricultural
Commissioner is responsible for enforcement of N.D.C.C. ch. 4.1-33, and the
Agricultural Commissioner must file suit for the chapter to apply. He
alternatively argued the statutory notice requirement was satisfied by a phone
call to Doe after damage to the crops and when Doe admitted during a
deposition that he received notice of the damages to Laufer’s crops. He filed a
transcript of Doe’s deposition in support of his argument.
[¶4] The district court granted Doe’s motion to dismiss. The court explained
the meaning of N.D.C.C. § 4.1-33-18(1) is clear and unambiguous, a person
bringing a civil action seeking reimbursement for property damage caused by
the application of a pesticide must provide written notice via certified mail to
the person who allegedly caused the damage. The court concluded that even if
Laufer provided actual notice of the damage by phone to Doe, such notice did
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not satisfy the statutory requirements and was therefore insufficient. The
court ruled Laufer did not provide the required notice and the action must be
dismissed. Judgment was entered.
II
[¶5] Doe argues the appeal was not timely and should be dismissed. Under
N.D.R.App.P. 4(a), a party appealing an order or judgment in a civil case is
required to file a notice of appeal “within 60 days from service of notice of entry
of the judgment or order being appealed.” The judgment was filed on
November 4, 2019, and notice of entry of judgment was served on
November 15, 2019. The notice of appeal was filed in the Supreme Court clerk’s
office on January 7, 2020. The appeal was timely.
[¶6] Doe also argues Laufer failed to comply with several rules of appellate
procedure, including that the notice of appeal did not designate the specific
order being appealed, that the preliminary statement of issues was not concise,
that the brief did not include citations to the record, and that the brief included
typographical errors. He requests sanctions as the Court deems appropriate.
[¶7] Under N.D.R.App.P. 13, we may take appropriate action against a
person who fails to perform an act required by the Rules of Appellate
Procedure. “Whether to administer sanctions under N.D.R.App.P. 13 for
noncompliance with the Rules of Appellate Procedure is discretionary with this
Court.” Krump-Wootton v. Krump, 2019 ND 275, ¶ 7,
935 N.W.2d 534 (quoting
Silbernagel v. Silbernagel,
2007 ND 124, ¶ 21,
736 N.W.2d 441). While Laufer’s
failure to follow all requirements of our rules increased the work for the Court
and others, we deny Doe’s request for sanctions under the facts and
circumstances of this case.
III
[¶8] Laufer argues the district court erred in dismissing his claims against
Doe. He contends the court misapplied the law and did not adequately explain
the basis for its decision.
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[¶9] Generally, a district court’s decision granting a motion to dismiss is
reviewed de novo. See Hondl v. State, 2020 ND 20, ¶ 5,
937 N.W.2d 564; Hughes
v. Olheiser Masonry, Inc.,
2019 ND 273, ¶ 5,
935 N.W.2d 530.
A
[¶10] Laufer argues the statutory notice requirement in N.D.C.C. § 4.1-33-
18(1) does not apply because the Pesticide Control Board and Agricultural
Commissioner enforce N.D.C.C. ch. 4.1-33. Laufer claims only the
commissioner can maintain an action under N.D.C.C. ch. 4.1-33, and therefore
N.D.C.C. § 4.1-33-18 does not apply to a lawsuit for breach of duty of care and
negligence brought by an individual.
[¶11] The interpretation of a statute is a question of law, which is fully
reviewable on appeal. Wilkens v. Westby, 2019 ND 186, ¶ 6,
931 N.W.2d 229.
In interpreting statutes, this Court has said:
“Our primary goal in statutory construction is to ascertain the
intent of the legislature, and we first look to the plain language of
the statute and give each word of the statute its ordinary meaning.
When the wording of a statute is clear and free of all ambiguity,
the letter of it is not to be disregarded under the pretext of
pursuing its spirit. If, however, the statute is ambiguous or if
adherence to the strict letter of the statute would lead to an absurd
or ludicrous result, a court may resort to extrinsic aids, such as
legislative history, to interpret the statute. A statute is ambiguous
if it is susceptible to meanings that are different, but rational. We
presume the legislature did not intend an absurd or ludicrous
result or unjust consequences, and we construe statutes in a
practical manner, giving consideration to the context of the
statutes and the purpose for which they were enacted.”
PHI Fin. Servs., Inc. v. Johnston Law Office, P.C., 2020 ND 22, ¶ 10,
937
N.W.2d 885 (quoting State v. G.C.H.,
2019 ND 256, ¶ 13,
934 N.W.2d 857).
“Statutes relating to the same subject matter shall be construed together and
should be harmonized, if possible, to give meaningful effect to each, without
rendering one or the other useless.” PHI Fin. Servs., at ¶ 10 (quoting G.C.H.,
at ¶ 13).
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[¶12] Under N.D.C.C. § 4.1-33-21, the Agricultural Commissioner enforces the
requirements of Chapter 4.1-33 and any rules adopted under the chapter,
brings actions to enjoin violations of the chapter, and issues orders requiring
people to cease and desist from unlawful activity violating the chapter. This is
not an action to enforce any rules under N.D.C.C. ch. 4.1-33 or for a violation
of N.D.C.C. ch. 4.1-33.
[¶13] Section 4.1-33-18, N.D.C.C. provides:
“1. a. Before a person may file a civil action seeking reimbursement
for property damage allegedly stemming from the application of a
pesticide, the person shall notify by certified mail the pesticide
applicator of the alleged damage within the earlier of:
(1) Twenty-eight days from the date the person first knew or
should have known of the alleged damage; or
(2) Before twenty percent of the crop or field allegedly
damaged is harvested or destroyed.
b. Subdivision a does not apply if the person seeking
reimbursement for property damage was the applicator of the
pesticide.
2. Upon notifying the applicator as required under subsection 1,
the person seeking reimbursement for the alleged property
damage shall permit the applicator and up to four representatives
of the applicator to enter the person’s property for the purpose of
observing and examining the alleged damage. If the person fails to
allow entry, the person is barred from asserting a claim against
the applicator.”
The plain language of the statute states a person must provide notice to the
pesticide applicator by certified mail before the person may file a civil action
seeking reimbursement for property damage allegedly stemming from the
application of pesticide. The notice requirement applies to any civil action
seeking reimbursement for damages caused by application of pesticide. The
statute unambiguously is not limited to actions under N.D.C.C. ch. 4.1-33.
[¶14] This Court applied a prior version of the pesticide notice of claim statute
to a negligence counterclaim, and to an action for negligence, breach of
contract, and breach of express and implied warranties. See Dickinson Air
Serv., Inc. v. Kadrmas, 397 N.W.2d 55, 58 (N.D. 1986); Wills v. Schroeder
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Aviation, Inc., 390 N.W.2d 544, 545-47 (N.D. 1986). The current version of the
statute did not change that the requirements of N.D.C.C. § 4.1-33-18 apply to
all civil actions seeking reimbursement for property damage as a result of a
pesticide application. Therefore, the district court did not misapply the law by
concluding the notice requirement under N.D.C.C. § 4.1-33-18 applies in this
case.
B
[¶15] Laufer argues the district court erred by determining he did not satisfy
the statutory notice requirement. He contends the evidence clearly shows he
satisfied the notice requirement by directly communicating with Doe.
[¶16] Section 4.1-33-18(1), N.D.C.C., states a person “shall” notify by certified
mail the pesticide applicator of the alleged damage. The word “shall” generally
creates a mandatory duty. In re K.V., 2019 ND 255, ¶ 16,
934 N.W.2d 879;
Sweeney v. Sweeney,
2002 ND 206, ¶ 17,
654 N.W.2d 407. “If the duty
prescribed in the statute is essential to its main objectives, the word ‘shall’ is
to be construed as creating a mandatory duty.” Sweeney, at ¶ 17.
[¶17] In interpreting a prior version of the statutory notice requirement, this
Court held the requirement is known as a notice-of-claim provision, and it acts
as an abbreviated statute of limitations. See Dickinson Air Serv.,
397 N.W.2d
at 57. The purpose of the notice requirement was to provide the defendant
“with the means of ascertaining evidence before time makes his proof difficult
or impossible to obtain.”
Id. We further said the short notice requirement was
necessary due to the nature of the subject matter involved in the statute.
Id.
Requiring notice by certified mail serves the main objective of the statute,
which ensures the defendant is notified in a timely manner so he can inspect
the damage allegedly caused by spraying before the evidence becomes
impossible to obtain.
[¶18] Use of the word “shall” in N.D.C.C. § 4.1-33-18(1) creates a mandatory
duty. The plain language of N.D.C.C. § 4.1-33-18(1) expressly prohibits a
person from filing a civil action for property damage stemming from the
application of pesticide without notifying the applicator by certified mail
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within 28 days from when the person first knew or should have known of the
damage. The failure to provide notice as required by the statute bars a lawsuit
for damages.
[¶19] In interpreting statutes with similar notice requirements, this Court
held strict compliance is required and a defendant’s actual notice of the
potential claim is not sufficient. For example, N.D.C.C. § 32-12.2-04(1) states
a person bringing a claim against the state or a state employee “shall present
to the director of the office of management and budget within one hundred
eighty days after the alleged injury is discovered . . . a written notice . . . .” This
statute consistently has been interpreted as requiring written notice, and that
the state’s actual notice of a potential claim did not matter. See State v. New
Holland, 2015 ND 223, ¶¶ 14, 26,
869 N.W.2d 136; Voigt v. State,
2008 ND 236,
¶¶ 4-5,
759 N.W.2d 530; Ghorbanni v. N.D. Council on the Arts,
2002 ND 22,
¶ 8,
639 N.W.2d 507; Allied Mut. Ins. Co. v. Dir. of N.D. Dep’t of Transp.,
1999
ND 2, ¶¶ 10, 15-16,
589 N.W.2d 201.
[¶20] Even if Laufer’s telephone call provided Doe actual information about
damages stemming from the chemical application, the call was not sufficient
to comply with the notice requirements under N.D.C.C. § 4.1-33-18(1). Laufer
failed to show he complied with statutory notice requirements. Therefore, the
district court did not err in dismissing Laufer’s claims.
IV
[¶21] Laufer argues the district court erred by ordering him to pay Doe’s
litigation costs. He claims the court did not give any reason for awarding the
costs and did not determine his pleadings were frivolous.
[¶22] Doe requested the district court dismiss the action with prejudice and
enter judgment in his favor for his taxable costs and disbursements. The
district court’s order for judgment stated that Doe “be awarded his reasonable
costs and disbursements as provided by statute.” Doe filed an affidavit of costs
for $647.07, and the court entered judgment for that amount.
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[¶23] Under N.D.C.C. § 28-26-06, the court shall award certain costs in favor
of a prevailing party. “Determining who is a prevailing party for an award of
disbursements under N.D.C.C. § 28-26-06 is a question of law, subject to de
novo review, while the question of the amount to be allowed for disbursements
and costs is one of fact, subject to an abuse of discretion standard.” Carpenter
v. Rohrer, 2006 ND 111, ¶ 34,
714 N.W.2d 804. A prevailing party for purposes
of N.D.C.C. § 28-26-06 is based on success on the merits and not the amount of
damages awarded. Carpenter, at ¶ 34. An award of costs under N.D.C.C. § 28-
26-02 is discretionary. Riemers v. Anderson,
2004 ND 109, ¶ 14,
680 N.W.2d
280. The party seeking relief has the burden to establish the court abused its
discretion.
Id.
[¶24] Doe requested $647.07 in costs and disbursements, including $10.00
under N.D.C.C. § 28-26-02, $50.00 for a court filing fee under N.D.C.C. § 28-
26-06, and $587.06 under N.D.C.C. § 28-26-06 for the expenses of procuring
evidence. The district court awarded the requested costs and disbursements as
permitted by law. The district court did not abuse its discretion by awarding
costs and disbursements.
V
[¶25] We affirm the judgment.
[¶26] Daniel J. Crothers
Lisa Fair McEvers
Gerald W. VandeWalle
Jerod E. Tufte
Jon J. Jensen, C.J.
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