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.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

MARCH 24, 2021 

STATE OF NORTH DAKOTA
1

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 
2

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 
3

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 

 

1 Solberg’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).
4

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. 
5

[¶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 
6

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.