I N T H E S U P R EM E C O U R T

STATE OF NORTH DAKOTA

2024 ND 156

John F. Fiebiger, Plaintiff and Appellant

 v.

Bill (William) Anderson, Chairman, 

Montpelier Township, Defendant and Appellee

No. 20240129

Appeal from the District Court of Stutsman County, Southeast Judicial District, the 

Honorable Nicholas Thornton, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

John F. Fiebiger, self-represented, Montpelier, ND, plaintiff and appellant; submitted on 

brief.

Corey J. Quinton, Fargo, ND, and Jenna R. Bergman, Minneapolis, MN, for defendant and 

appellee; submitted on brief.
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Fiebiger v. Anderson

No. 20240129

Crothers, Justice.

[¶1] John Fiebiger appeals from a district court order granting summary judgment in 

favor of Bill Anderson and Montpelier Township. Fiebiger argues the district court erred 

in granting summary judgment because his claims were not time barred by the statute of 

limitations. We affirm.

I 

[¶2] The record shows that in Montpelier Township, Stutsman County, a road exists on 

the edge of the southeast quarter of section 6, township 137, range 63. This road has a 

culvert through it that allegedly has caused problems downstream on Fiebiger’s land 

located in sections 20 and 29 of township 137, range 63. The culvert was first positioned 

in the road between 1968 and 1972. The culvert caused little to no problems over its 

lifetime, but in 2004 Fiebiger noticed flooding occurred on his property. 

[¶3] In 2018, Fiebiger’s upstream neighbor worked in the ditch where the culvert was 

located and damaged the culvert. The Township replaced the existing culvert on August 

20, 2020, with one the same size. In an affidavit, Anderson stated the new culvert was 

“identical” to the original culvert. Fiebiger noticed flooding in 2019, 2021 and 2022. He 

did not notice flooding in 2020. 

[¶4] On June 6, 2023, Fiebiger sued Anderson and the Township for negligence and 

inverse condemnation. His claim of negligence is based on the Township’s inaction over 

concerns of dammed water and his 2018 request to increase the flow of the dammed water. 

The inverse condemnation claim is based on the August 2020 installation of a culvert that 

allegedly caused flooding in 2021 and 2022. He also claims inverse condemnation from 

flooding in 2019. 

[¶5] On December 29, 2023, the Township moved for summary judgment. On March 6, 

2024, after months of filings, the district court granted summary judgment and concluded 

Fiebiger failed to file his negligence claim within the statute of limitations. The court also 

determined Fiebiger’s inverse condemnation claims were filed outside the statute of 

limitations because his land initially flooded in 2004 and the time for him to assert a claim 
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would have expired in 2010. The court did not make any determinations on the Township’s 

other grounds for summary judgment. Fiebiger timely appealed. 

II 

[¶6] The standard of review for summary judgment 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. On appeal, this Court 

decides whether the information available to the district court precluded the 

existence of a genuine issue of material fact and entitled the moving party to 

judgment as a matter of law. Whether the district court properly granted 

summary judgment is a question of law which we review de novo on the 

entire record.”

Borsheim Builder Supply, Inc. v. Manger Ins., Inc., 2018 ND 218, ¶ 7, 917 N.W.2d 504 

(citing Forsman v. Blues, Brews & Bar-B-Ques, Inc., 2017 ND 266, ¶ 9, 903 N.W.2d 524). 

[¶7] “The party seeking summary judgment has the initial burden of showing that the 

material facts or inferences to be drawn from the facts are undisputed and that the movant 

is entitled to judgment as a matter of law.” McColl Farms, LLC v. Pflaum, 2013 ND 169, 

¶ 28, 837 N.W.2d 359. Here, the defendants’ motion for summary judgment established a 

prima facie case that Fiebiger’s claims were not timely made.

[¶8] When the moving party’s burden is met, as it was here, the party opposing summary 

judgment cannot rely on “pleadings or unsupported conclusory allegations,” but instead 

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.” Miller v. Nodak Ins. Co., 

2023 ND 37, ¶ 12, 987 N.W.2d 369 (citing N. Star Mut. Ins. v. Ackerman, 2020 ND 73, ¶ 

6, 940 N.W.2d 857); Bravera Bank v. Craft, 2023 ND 214, ¶ 18, 997 N.W.2d 829; see also 

First Nat’l Bank of Hettinger v. Clark, 332 N.W.2d 264, 267-68 (N.D. 1983) (conclusory 
3

statements in briefs opposing summary judgment cannot be viewed as evidence that 

establishes or supports a factual issue). “The party opposing summary judgment must also 

explain the connection between the factual assertions and the legal theories in the case, and 

cannot leave to the court the chore of divining what facts are relevant or why facts are 

relevant, let alone material, to the claim for relief.” Spratt v. MDU Res. Grp., Inc., 2011 

ND 94, ¶ 7, 797 N.W.2d 328 (cleaned up).

[¶9] Fiebiger argues he filed his 2019, 2021 and 2022 inverse condemnation claims 

within the statute of limitations, which would not allow summary judgment. Fiebiger also 

argues he brought his negligence claim within the statute of limitations. In responding to 

the defendants’ motion for summary judgment, he could not simply rely on “pleadings or 

unsupported conclusory allegations,” but instead was required to “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.” Miller, 2023 ND 37, ¶ 12 (citing N. Star Mut. Ins., 2020 

ND 73, ¶ 6); Bravera Bank, 2023 ND 214, ¶ 18.

[¶10] “Competent admissible evidence” necessary to resist a motion for summary 

judgment refers to evidence that is legally admissible and relevant to the contested issues. 

McColl Farms, 2013 ND 169, ¶ 30 (“Rule 56(e)(1), N.D.R.Civ.P., requires that affidavits 

supporting or opposing a motion for summary judgment “be made on personal knowledge, 

set out facts that would be admissible in evidence, and show that the affiant is competent 

to testify on the matters stated.”). The evidence must be submitted “by affidavit or other 

comparable means which raises an issue of material fact and must, if appropriate, draw the 

court’s attention to relevant evidence in the record by setting out the page and line in 

depositions or other comparable documents containing testimony or evidence raising an 

issue of material fact.” Perius v. Nodak Mut. Ins. Co., 2010 ND 80, ¶ 9, 782 N.W.2d 355 

(cleaned up). The evidence cannot include hearsay unless the hearsay falls within an 

accepted exception. McColl Farms, at ¶ 30. “When no pertinent evidence on an essential 

element is presented to the district court in opposition to a motion for summary judgment, 

it is presumed no such evidence exists.” Schmitt v. MeritCare Health Sys., 2013 ND 136, 

¶ 8, 834 N.W.2d 627.

[¶11] Fiebiger failed to supply the district court with an affidavit or admissible evidence 

supporting his claims against the Township. He instead directed the district court to his 

complaint. His complaint contains four pages of allegations and 104 pages of documents 
4

and legal decisions. Fiebiger’s complaint includes minutes from the Township’s meetings, 

minutes from the Stutsman County Water Resource Board’s meetings, memoranda from 

the State Engineer, a hydraulic study from Interstate Engineering, a statement from a 

neighbor supporting Senate Bill 2324 (Hearing on S.B. 2324 Before the Political 

Subdivisions Comm., 67th N.D. Legis. Sess. (Feb. 12, 2021) (testimony of Sue Backer)), a 

stream crossing determination from the Department of Water Resources, and other 

correspondence from Fiebiger. Neither the complaint itself nor the incomplete or 

unauthenticated documents attached to the complaint meet the competent evidence 

standard. Therefore, Fiebiger’s bare reliance on his complaint and attachments was not 

sufficient under our summary judgment standard and the district court did not err by 

granting summary judgment in favor of the defendants. Miller, 2023 ND 37, ¶ 12; Spratt, 

2011 ND 94, ¶ 7; McColl Farms, 2013 ND 169, ¶ 32 (court properly refused to consider 

documents for which attorney’s affidavit could not provide authentication).

III

[¶12] The district court did not err in granting summary judgment because Fiebiger relied 

on his complaint and did not provide additional affidavits, evidence, or testimony that 

raised an issue of material fact. We affirm.

[¶13] Jon J. Jensen, C.J. 

Daniel J. Crothers 

Lisa Fair McEvers 

Jerod E. Tufte

Douglas A. Bahr