IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2022 ND 145

Elton Lovro, Plaintiff and Appellant

v.

City of Finley, Defendant and Appellee

No. 20210300

Appeal from the District Court of Steele County, East Central Judicial District, 

the Honorable Steven L. Marquart, Judge.

AFFIRMED.

Opinion of the Court by VandeWalle, Justice.

Theodore T. Sandberg, Grand Forks, ND, for plaintiff and appellant.

Howard D. Swanson, Grand Forks, ND, for defendant and appellee.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JULY 21, 2022 

STATE OF NORTH DAKOTA
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Lovro v. City of Finley

No. 20210300

VandeWalle, Justice.

[¶1] Elton Lovro appealed from a judgment dismissing his complaint with 

prejudice after the district court granted summary judgment in favor of the 

City of Finley (“City”). Lovro argues the court prematurely granted summary 

judgment, the City waived its discretionary immunity, and the court erred in 

applying immunity against the breach of contract claim. We affirm the 

judgment.

I

[¶2] Lovro owns a house and property in Finley, Steele County, North Dakota. 

In March 2020, the City’s water line connected to the curb stop leading to 

Lovro’s home broke. Water flowed onto the property, damaging Lovro’s 

driveway and basement. Lovro sued the City for negligence and gross 

negligence. He alleged the damages were caused by the City’s failure to 

properly operate, maintain, repair, and inspect their water system. Lovro also 

sued the City for breach of contract based on the City’s failure to properly and 

safely deliver water to his home. The City responded by denying the allegations 

that it was negligent, grossly negligent or that its acts or omissions caused the 

damages. The City denied the existence of any contractual relationship 

between Lovro and the City. The City affirmatively alleged that it was immune 

from suit under chapter 32-12.1 of the North Dakota Century Code.

[¶3] Discovery revealed that the City underwent a water main replacement 

project in 2001. The project originally included replacement of a number of 

service lines and curb stops. According to the unsworn declaration of Andrew 

Aakre, city engineer, the scope of the project was reduced by eliminating 150 

curb stops and associated service lines which reduced the overall project cost 

by $130,600. Aakre contended the City approved the change after being 

advised that the service lines and curb stops were in good working condition 

and eliminating these would save the City $130,600. The water main 

replacement project did not include Lovro’s property. According to the unsworn 
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declaration of George Braun, Director of Public Works, service lines and curb 

stops typically fail due to physical damage, corrosion, frost movement, soil 

movement, natural deterioration, improper installation, improper repairs or 

other causes. Braun contended that no routine maintenance or procedure 

would have prevented or predicted the break.

[¶4] The record reflects that the City had paid for some repairs to Lovro’s 

driveway. However, when it came to payment for the repairs of the basement, 

the City, through the North Dakota Insurance Reserve Fund, refused to pay. 

The City moved for summary judgment arguing that Lovro’s claims were 

barred by discretionary immunity and the public duty doctrine, Lovro failed to 

establish the City was negligent, and there was no contractual relationship 

between the parties. Lovro opposed the motion. A hearing on the City’s motion

was held. The district court granted the City’s motion and entered judgment

dismissing Lovro’s claims and awarding costs to the City.

II

[¶5] Lovro argues the district court erred in granting summary judgment 

dismissing his claims because the ruling was premature and discovery was still 

ongoing. The court did not specifically address Lovro’s request for additional 

time under N.D.R.Civ.P. 56(f), therefore we assume the court denied the 

request because it granted summary judgment in the City’s favor. Hayden v. 

Medcenter One, Inc., 2013 ND 46, ¶ 7, 828 N.W.2d 775.

[¶6] A party seeking additional time for discovery should make a motion 

under N.D.R.Civ.P. 56(f). Under Rule 56(f) a district court may delay its ruling 

on a motion for summary judgment to allow additional discovery “[i]f a party 

opposing the motion shows by declaration that, for specified reasons, it cannot 

present facts essential to justify its opposition.”

[¶7] We have recognized that “[s]ummary judgment is appropriate only after 

the non-moving party has had a reasonable opportunity for discovery to 

develop his position.” Choice Fin. Grp. v. Schellpfeffer, 2006 ND 87, ¶ 9, 712 

N.W.2d 855. A request for additional time for discovery under N.D.R.Civ.P. 56(f)

invokes the district court’s discretion, and its decision will not be overturned 
3

on appeal absent abuse of that discretion. Swanson v. Larson, 2021 ND 216, ¶ 

8, 967 N.W.2d 778. “A court abuses its discretion if it acts in an arbitrary, 

unreasonable, or unconscionable manner, it misinterprets or misapplies the 

law, or its decision is not the product of a rational mental process leading to a 

reasoned determination.” Id. (citing Ryberg v. Landsiedel, 2021 ND 56, ¶ 21, 

956 N.W.2d 749). “[W]hen further discovery would not involve an issue which 

is the subject matter of the summary judgment motion, a trial court does not 

abuse its discretion in deciding the motion without granting the Rule 56(f) 

request.” Perry Center, Inc. v. Heitkamp, 1998 ND 78, ¶ 10, 576 N.W.2d 505.

[¶8] Lovro requested additional time for discovery under Rule 56(f) in his 

brief opposing summary judgment, he did not submit a declaration supporting 

his request for additional discovery. In his brief to the district court, Lovro sought 

additional discovery to depose multiple witnesses. However, Lovro has failed to 

explain how the specific information sought would have precluded summary 

judgment or why the information had not previously been obtained. A party 

may not merely recite conclusory general allegations that additional discovery 

is needed. Alerus Fin., N.A. v. Erwin, 2018 ND 119, ¶ 24, 911 N.W.2d 296. We 

conclude the district court did not abuse its discretion in refusing to allow 

additional time to conduct discovery.

III

[¶9] Lovro argues the district court erred in granting summary judgment 

because the City waived its discretionary immunity by admitting liability and 

paying for some of the repairs.

[¶10] Our standard of review when reviewing a district court’s summary 

judgment decision 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 
4

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.

Simmons v. Cudd Pressure Control, Inc., 2022 ND 20, ¶ 8, 969 N.W.2d 442 

(quoting RTS Shearing, LLC v. BNI Coal, Ltd., 2021 ND 170, ¶ 11, 965 N.W.2d 

40).

[¶11] The source of discretionary immunity is N.D.C.C. § 32-12.1-03(3)(d), 

which provides that a political subdivision may not be held liable for claims 

based on “[t]he decision to perform or the refusal to exercise or perform a 

discretionary function or duty, whether or not such discretion is abused and 

whether or not the statute, charter, ordinance, order, resolution, regulation, or 

resolve under which the discretionary function or duty is performed is valid or 

invalid.”

[¶12] The discretionary function exception first appeared in Kitto v. Minot 

Park District, 224 N.W.2d 795 (N.D. 1974), where this Court abolished 

governmental immunity from tort liability for political subdivisions. Id. at 797. 

However, political subdivisions retained some immunity for discretionary acts:

We do not contemplate that the essential acts of governmental 

decision-making be the subject of judicial second-guessing or 

harassment by the actual or potential threat of litigation. We hold 

that no tort action will lie against governmental units for those 

acts which may be termed discretionary in character. Included 

within this category are acts traditionally deemed legislative or 

quasi-legislative, or judicial or quasi-judicial, in nature. The 

exercise of discretion carries with it the right to be wrong. It is for 

torts committed in the execution of the activity decided upon that 

liability attaches, not for the decision itself.
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Id. at 804. The Kitto decision recognized that the legislature could modify or 

shape governmental liability within its constitutional authority. Id. at 803. 

Following Kitto, the legislature enacted N.D.C.C. ch. 32-12.1 to limit the 

liability of political subdivisions. The purpose of the discretionary function 

exception is to “prevent judicial ‘second-guessing’ of legislative and 

administrative decisions grounded in social, economic, and political policy 

through the medium of an action in tort.” Olson v. City of Garrison, 539 N.W.2d 

663, 666 (N.D. 1995) (quoting Berkovitz v. United States, 486 U.S. 531, 536-37

(1988)).

[¶13] Lovro concedes that the City is entitled to discretionary immunity under 

the statute but he asserts the City waived its discretionary immunity. The 

district court found that Lovro failed to cite any case law which provided that 

the discretionary function exception could be waived. We agree. Likewise, we 

do not consider an argument that is not adequately articulated, supported, and 

briefed. Krueger v. Grand Forks Cty., 2014 ND 170, ¶ 30, 852 N.W.2d 354.

[¶14] Lovro’s claims are barred by governmental immunity and he has failed 

to establish that the City can or did waive its immunity. We conclude that the 

district court did not err in granting the City’s motion for summary judgment.

IV

[¶15] Lovro argues the district court erred in granting summary judgment 

dismissing his breach of contract claim because the City cannot assert 

discretionary immunity against the breach of contract claim. The City argues 

Lovro abandoned his breach of contract claim because his notice of appeal fails 

to identify the issue and his brief makes no argument related to the breach of 

contract claim.

[¶16] The failure to include an issue in the notice of appeal or statement of 

issues does not preclude appellate review. See N.D. Workforce Safety & Ins. v. 

Salat, 2019 ND 294, ¶ 11, 936 N.W.2d 294. However, we only decide those 

issues which are “thoroughly briefed and argued” and “a party waives an issue 

by not providing adequate supporting argument.” Weeks v. N.D. Workforce 
6

Safety & Ins. Fund, 2011 ND 188, ¶ 9, 803 N.W.2d 601 (quoting Olson v. 

Workforce Safety & Ins., 2008 ND 59, ¶ 26, 747 N.W.2d 71).

[¶17] Lovro did not thoroughly brief the breach of contract issue nor did he 

provide adequate supporting argument. We conclude Lovro waived the issue 

that the district court erred in dismissing his breach of contract claim.

V

[¶18] We have considered the remaining issues and arguments raised by the 

parties and find them to be either unnecessary to our decision or without merit. 

We affirm the judgment.

[¶19] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte