IN THE SUPREME COURT FOR THE STATE OF NORTH DAKOTA Northern States Power Company, a Minnesota ) corporation, by its Board of Directors, ) ) Supreme Court No. 20190227 Plaintiff and Appellee, ) vs. ) ) LaVerne Mikkelson a/k/a LaVerne C. Mikkelson Sr,) Kandi Mikkelson a/k/a Kandi K. Mikkelson, ) Ward County District ) Court No. 51-2017-CV-00812 Defendants and Appellants, ) ) SRT Communications, Inc., A North Dakota ) cooperative association; Verendrye Electric ) Cooperative, Inc., a North Dakota cooperative ) association; Brett Livingston; Lisa Livingston; ) Jarrod Livingston; New Prairie Township; and ) Ward County, ) ) Defendants. ) APPEAL FROM THE JUDGMENT ENTERED JANUARY 22, 2019 (DOCUMENT NO. 109), PURSUANT TO THE FINDINGS OF FACT, CONCLUSION OF LAW, AND ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DIRECTING ENTRY OF JUDGMENT ENTERED JANUARY 16, 2019 (DOCUMENT NO. 107), AND THE ORDER DENYING DEFENDANTS’ MOTION TO AMEND ORDER AND JUDGMENT ENTERED MAY 30, 2019 (DOCUMENT NO. 156)

THE HONORABLE DOUGLAS L. MATTSON, PRESIDING 

### REPLY BRIEF OF APPELLANTS

Richard P. Olson (ID# 03183) Jessica L. Merchant (ID #06169) Ryan G. Quarne (ID# 07618) OLSON & BURNS P.C. 17 First Avenue SE Minot, ND 58702-1180 (701) 839-1740 rpolson@minotlaw.com jmerchant@srt.com rgquarne@minotlaw.com Attorneys for Appellants LaVerne Mikkelson and Kandi Mikkelson 1TABLE OF CONTENTS Paragraph N o.

Table of Authorities .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I
. The District Court er red in grantingsummary

judgme nt. .
. . . . . . . . . . . . . . . . . . 3 A. The Mikkelsons pre sented e vidence of a material dispute of f act..
. . . . . 4 B. Mr. Cy

mbaluk provided a dmissibl e evide nce of damag es . . . . . . . . . . . . 15 I I
. The District Court Err ed in Deny ing the Mikkelsons’ Motion to Amend.

. . . . . 19 A. Mr. Mikkelson provided an admissible opinion reg ardi n g t h e impact of NSP’s taking on the va lue of the Subjec t Property
. . . . . . . . . . . . . . . . . . 20 B. T h e Mikkelsons have provided a compelling argument in reg ards to t h e admissibili ty

of compe nsation rec eived by simil arly-situated landowne rs . . 2
. 4 C. The Mikkels o n s h ave provided a compelling argument in reg ards to the admissibili ty

of off ers that NSP made to the Mikkelsons. .

. . . . . . . . . . . 27 I I I
. NSP’s interpretation of L ener tz v. C ity of Minot is incorrec t. .
. . . . . . . . . . . . . . 29 IV. Conclusion.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Certificate of Servic e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Certificate of Compliance .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

2[¶1] TABLE OF AUTHORITIE S Paragraph N o.

Cases Bur ke v. State, 2012 ND 169, ¶ 10, 820 N.W.2d 349, 353.

. . . . . . . . . . . . . . . . . . . . . . . . 8 Dallis v. Aetna L ife Ins. Co., 768 F.2d 1303, 1307 (11th Cir. 1985) .

. . . . . . . . . . . . . . . 28 Flate n v. Couture, 2018 ND 136, ¶28, 912 N.W.2d.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Gec k v. Wentz , 133 N.W.2d 849 (N.D. 1964)..

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26 J im's Hot Shot Serv. v. Cont'l W. Ins. Co., 353 N.W.2d 279, 282, 283 (N.D. 1984). 10, 21 L ener tz v. C ity of Minot, 2019, ND 53, - N.W.2d .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 State v. Goulet, 1999 ND 80, 10, 593 N.W.2d 345, 348 .

. . . . . . . . . . . . . . . . . . . . . . . . 13 State v. Haibec k, 2006 ND 100, 9, 714 N.W.2d 52 .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 State v. Noac k, 2007 ND 82, 8, 732 N.W.2d 389, 392 .

. . . . . . . . . . . . . . . . . . . . . . . . . . 13 Walton v. McDonnell Doug las Corp., 167 F.3d 423, 428 ( 8 Cir. 1999).

. . . . . . . . . . . . 17 t h Statutes N.D.C.C. 32-15-22 .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6 Rules N.D.R.Civ.P. 59(j).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 N.D.R. Evid.408..

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Other Authority N.D. Const. Art. I , § 16.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

3[¶2] LEGAL ARG UMENT

[¶3] I. The District C ourt er red in granting su m m ary judgm ent. [¶4] A. The Mikkelson s presente d evidence of a m ater ial disp ute of f act. [¶5] Everyone agree s the Mikkelsons are enti t l ed to just compensation. This compensation should be deter mined by a jury

. N.D. Const. Art. I , § 16; N.D.C.C. 32-15-22. [¶6] In depositi o ns, L aVe rne Mikkelson said he had an opinion of the impact of the
ea s ement on the marke t value of the Subject Property
. There fore , he is entitled un d er t h e North Dakota Constitut ion, and under N.D.C.C. 32-15-22. [¶7] At the District Court’s hearing on the motion for summary judgme nt, Counsel for the Mikkelsons raised the exact rele vant deposition testimony in which Mr. Mikkelson said the fair m ar k et value of the S ubject P roper ty would be reduce d to zero, App. pg. 59, L aVe rne Mikkelson Depo., 112:3 - 113:2. The Mikkelsons cited this passag e in their appellate brief. Mikkelson App. Br . at ¶ 40. [¶8] Taking this passag e in the light mo s t fa v o rable to the non-moving party , Mr. Mikkelson has an opinion on the value of the proper ty afte r the taking by NSP. For summary judgme nt purposes, the evidentiar y asser tions of the party opposing the motion are assumed to be true. Bur

ke v. State, 2012 ND 169, ¶ 10, 820 N.W.2d 349, 353. Mr. Mikkelson should be able to present this information to a finde r of f act. [¶9] NSP characte rizes this argument as “limited” and “out-of context." These statements
are conclusive on their own. Fur thermore , Mr. Mikkelson later amende d his statement with respe ct to the af

ter-va lue of the pr operty . App. pg . 59, L aVe rne Mikkelson Depo., 112:3 - 113:2. Even i f this testimony is inconsistent with other portions of Mr. Mikkelson's
4testimony , that is a fac t question. It is a question for a jur y . [¶10] NSP’s arguments reg arding Mikkelson’s brief in response to summary judgme nt are simil arly unavailing . NSP point s out that “[Mi kkelson] st ated on the rec ord that he did not have a n opinion as to the diminut ion of value." This is true. App. 46, 61:13-23. Howeve r, he also said at a later point in his deposition that there would be no value on the portion taken by NSP. This is clea

rly an opinion on the diminuti on of value. This is consistent with J im’s Hot Shot Serv., Inc. v. Cont’l W. Ins. Co., 353 N.W.2d 279 (N.D. 1984). It is not an attempt to “ attack the strawman”
. Rather, it g oes to the hear t of a landowners’ right to rece ive just compensation for property which is being taken from h i m . I n J im's Hot Shot, the property
owner claimed he took a gross income of $450,000.00 and multipl ied it by ten, to c ome up with the value of his proper ty , and he did not provide a rational basis for this meth o d o f calc ulation. I d. at 283. Mr. Mikkelson instead based his conclusion that there would be no value on this parc el due to the added cost eac h year to far m around the power lines. App. pg . 59, L aVe rne Mikkelson D ep o . , 1 1 2 ; 9-21. This, considere d with his vast experience far ming, buying, and selling land, is a sufficie nt r ational basis to calc ulate a value. Mr. Mikkelsons' leng thy experience as a far mer an d landowner means that his opinion on the value of l and is solid testimony , based on proper fac ts and analy sis. Whatever el s e was stated at his deposition, this i nformation is an opinion on valuation. It must be considere d. [¶11] NSP argues that “at no point during oral argument did the Mikkelsons’ counsel ever fully prese nt lines 112:22-113:2 or argue why t hese particula r statements purportedly demonstrated a g enuine dispute reg arding damag es. Howeve r, counsel for the Mikkelsons provided portions of the c itation directly to the District Court. App. 98-99 8:15-10:9.
5[¶12] Ms. Merc hant stated: “That supports our position in light of the fac t that even though

they indicate that NSP or that Mikkelsons would not be able to provide a diminuti on in value without labeling it as such Mr. Mikkelson has provided admissible, probative testimony that indicates that he fee ls that the diminuti on in va lue is 100 perc ent.” I d. She continued that “ Mr. Mikkelson has testified essentially through deposition testimony that he believes that the proper ty has zer o value. And so his befor e value for the purposes of agricultural land is $3,000. He be lieves that it' s 100 perc ent diminution.” I d. [¶13] This Court has stated that it is not a "f err et," beca

use it has no obligation to make an "unas s i s t ed sear ch" of the rec ord. State v. Goulet, 1999 ND 80, 10, 593 N.W.2d 345, 348 S eparately , this Court has stated that it will not "w ill not consider an argument that is no t adequately articulated, supported, and briefe d." State v. Noac k, 2007 ND 82, 8, 732 N.W.2d 389, 392, citing State v. Haibec k, 2006 ND 100, 9, 714 N.W.2d 52. It means the Court does not have a duty to investigate arguments that are raised without evidentiar y or leg al support. It does not mean the Court may disreg ard a

ny arg ument raised w ithout a brief. [¶14] There was no "una ssisted sear ch" of the rec ord here

. The Mikkelsons brought to the Court's attention a statement that was alre ady on the rec ord, through the deposition transcript of L aVe rne Mikkelson. The argument was "a dequate ly articulated, supported, and briefe d" beca use the Mikkelsons pointed to statements on the rec ord, and explained a coher ent leg al basis. There fore , NSP's argument fails. As such, the Mikkelsons respe ctfully reque st that the Court overturn the D istrict Court’s ruling on the motion for summary judgme nt. [¶15] B. Mr. C ym balu k provid ed adm issib le evidence of dam ages. [¶16] The District Court a lso f ound that Mr. Cy

mabaluk attested that he wa s only asked
6to appra ise the Subject Property befor e the taking

. Howeve r, Cy mbaluk' s appra isal set forth a value of $2,500.00 per

acr e. App. pg . 71, Cy

mbaluk Appra isal. [¶17] At trial, NSP will have the chanc e to ask Cy mbaluk about the basis of the Mikkelsons’ conclusions, and about his own ex p er i ence and qualifica tions, including his prior assessments of diminuti on in value. Simi larly , Cy mb a lu k a tt e s ted that he would provide rebuttal testimony as to NSP's expert repor t. Cy mbaluk' s expert disclosure was filed with the court. App. pg . 68-6 9 , Di sclosure of Expert Wit ness. NSP's expert has testified that the dimuniti on in value to the proper ty underly ing the proposed ease ment is 50%, so at the very least Cy mbaluk’s testimony would be rele vant as to t h e b ef o re valuation. App. pg . 72-75, Boc k Appra isal. NSP has argued that a party must prese nt aff irmative evidenc e, not simply contend that a jury might disbelieve the movi n g p arty ’s evidenc e. Walton v. McDonne ll Doug las Corp. 167 F.3d 423, 428 (8 Cir. 1999). I f nothing else, the Mikkelsons would have t h been within their rights to call Mr. Boc k to testify in their own case in chie f t o s h ow dimuniti on in value perc entag e, and then use Mr. Cy mbaluk and Mr. Mikkelson's testimony to show the startingpoint should have bee n highe r. [¶18] Cy mbaluk’s s tatements showed he could testify that there was a materia l dispute of fac t reg arding the diminuti on in value. There fore , District Court’s Conclusions of L aw wer e
err oneous and should be ove rturned. [¶19] II. The District Court err ed in denyin g the Mikkelson s’ Motion to Am end. [¶20] A. Mr . Mi k kelson provided an adm issib le opin ion regar d i n g th e

im pact of NSP’s t akin g on the value of the Sub jec t P roperty. [¶21] An owner may testify as to the value of his proper ty without qualification other than

7the fac t of owner ship. J im's Ho t S h o t S erv. v. Cont'l W. Ins. Co., 353 N.W.2d 279, 282

(N.D. 1984). A di strict court “ may decline to consider an i ssue or argument raised for the first time on a motion for rec onsideration [under N.D.R.Civ. P. 59(j)] if it could ha ve been raised in earlier proce eding s.” Flate n v. Couture, 2018 ND 136, ¶28, 912 N.W.2d (alter ations in orig inal) (citations omitted). Her e, information provided in the Mikkelson’s motion was based on deposition testimo n y t h at was submitt ed as a part of NS P’s motion for summ ary judgme nt. Even if this wo u l d be considere d new information, there is nothing say ing the District Court could not consider information that was alre ady on the rec ord. The District Court’s o rd er did not ref use to consider new information prese nted. Instead, the order acknow ledg ed Mr. Mikkelson’s testimony that the proper ty aff ecte d by the transmission line
was devalued b y 1 0 0 %, but conclude d that L aVe rne Mikkelson only offe red a subjective valuation of the proper

ty ’s value afte r installation of the new transmission line. App. pg . 88, ¶¶6- 7. Howeve r, hi s testimony was c ompetent, admissible and not mere ly subjective- a

nd
as s uch should have cre ated a dispute of materia l fac t. There fore it was an ab u s e o f discretion to conc lude that summary judgme nt was appr opriate. [¶22] When taken as a whole, the testimony shows that Mr. Mikkelson w as competent to provide admissible evidenc e on the marke t valuation of the taking

. See App. pg . 62, L aVe rne M i kkelson Depo., 124:24 - 125:16 (noting the land has no value) , App. pg . 62, L aVe rne Mikkelson Depo., 125:25 - 126:7. (noting he not pay any thing for land under the ease ment), and L aVe rne Mikkelson Depo., App. pg . 62, 126:24-25-127:18 (e xplaining how he would use a be fore -and- afte r approach)

. [¶23] NSP cites to a portion of the deposition transcript acknow ledg ing that Mr. Mikkelson
8has bought tens of thousands of acr es, wher e he then states that he would devalue land next

to the ease ment proper

ty so he would not be paying any thing for i t. This testimony shows that he in fac t had n ego t i at i ons play out in that fashion. App. pg . 62 L aVe rne Mikkelson Depo, 126:10-1:27:18. There is no guesswork to be done by the jury in this instance. Instead, the jury will either b el i ev e M r. Mikkelson, or they will not. Ba sed on this testimony , it would not be appr opriate to grant summary judgme nt. [¶24] B. The Mikkelson s have provided a com pellin g argum ent in regar ds to the

a dm is s ib il it

y o f c o m pe ns a t io n rec eived by sim ilarly-situated la nd o wne r s . [¶25] NSP argu ed that this Court has rec ognized that evidenc e of unacc epted offe rs to landowner s are g ener ally inadmissible beca use they do not ref

lect the v a lu e ultimately agree d to by a buyer and seller. NSP looked for support under Gec k v . Wentz , 133 N.W.2d 849 (N.D. 1964), but failed to note that Gec k discusses unacc epted offe rs made by third parties, as opposed to off

ers be ing ma de fr om the condemning authority

. [¶26] In their prior briefing , the Mikkelsons showed how the Gec k analy sis weighs in favor of admiss ibilit y . In fac t, these offers would be highly probative a s to market value

. In any event, resolution of the admissibili ty of these offe rs , b o th t o the Mikkelsons as well as to other landowner s, should more appropriately have been dealt with in a motion in limine, as opposed to beinga par

t of the dispositive summary judgme nt motion. [¶27] C. The Mikkelson s have provided a com pellin g argum ent in regar ds to the

adm issib ility of

off ers t hat NSP m ade to the M ikk elsons. [¶28] T h e p ri or offe rs to the Mikkelsons, Saug stad, and Smit h are admissible, simpl y beca use they wer e m ade by NSP. Past offe rs made by NSP are not excluded by Rule 408, beca use “for Rule 408 to apply , there must b e an ac tu al dispute, or at least an appar ent
9differ ence of opinion betwee n the parties, as to the validity of a claim.” Dallis v. Aetna L ife

Ins. Co., 768 F.2d 1303, 13 0 7 (11th Cir. 1985), citing 2 J
. Weinstein & M. Be rg er, Weinstein's Evidence para . 408[01] (1982). Her e, NSP's other offe rs wer e made into reg ards to admitted, undisputed claims. Fur ther, there was no d ispute as t o the $10,000.00 offe red to Mr. Mikkelson, other than the fac t that NSP then attempted to only pay eighty perc ent of the value. T here fore , they are not excluded by

Rule 408. [¶29] III. NSP ’s interpre tation of L enertz v. City of Minot is incorrec t. [¶30] NSP arg

ues that L ener

tz v. City of Minot, 2019, ND 53, - N. W
. 2 d s upports its position. Howeve r, L ener tz is distinguishable. In L ener tz, the landowner was advanc ing a leg al argument that the entirety of his proper ty had a zero value subsequent to a partial t ak i n g. Her e, Mr. Mikkelson testified that he would sprea d the loss in value to the who l e parc el, no t t hat the entire parc el of had zero value. The L ener tz court rea soned that any discount in a potential sale would be the diminuti on in value. I d

. ¶4. Her e, Mr. Mikkelson’s t es t i m ony is that the entire parc el would be discounted for the actua l ease ment acr eag e, sprea d across the parc el. The value of his proper ty not taken direc tly by the power line would be reduc ed overa ll beca use the value under the power line was zero. There fore , NSP's argument is not compelling. [¶31] IV. CONCLUSION [ ¶32] It is inappropriate to grant summary judgme nt on the issue of damag es in an eminent domain case . I f nothing else, the Mikkelsons should be able to testify to the value of their proper ty befor e the taking and after the taking

. For that rea son, the Dis trict Court err ed in granti ng summary judgme nt, and abused its discretion in declining to amend its prior
10judgme nt. The Mikkelsons reque st this Court overturn the District Court's summary

judgme nt order a

nd order denying the Mikkelsons' Motion to Amend. [¶33] Dated this 12 day of De cembe r, 2019. th OL SON & B URNS P.C
.

/s/ J essica L . Merc hant Richard P. Olson (ID# 03183) J essica L . Merc hant (ID #06169) Ry an G. Qua

rne ( I D# 07618) OL SON & B URNS P.C
. 17 First Ave nue SE P.O. Box 1180 Minot, ND 58702-1180 (701) 839- 1740 rpolson@minotlaw.com jmercha nt@srt.com rg quarne @minotlaw.com Attorney s for Appe llants L aVe rne Mikkelson a nd Kandi Mikkelson

11[¶36] CERTIFIC ATE OF SERVICE I , J essica L . Merc hant, attorne y for Appe llants do hereby cer tify that on the 12 day

t h of De cembe r, 2019, a c opy of the REPLY B RI EF O F APPEL LANTS was se rved on the followingby

elec tronic mail transmission, per N.D. Sup.Ct. Admin. Order 14(D): Mr. Patrick D. J. Mahlberg Fr edrikson & By

ron, P.A. 200 South S ix th Street, Suite 4000 Minneapolis, MN 55402-1425 PMahlberg @fre dlaw.com Attorney for Nor thern States Power Company Def endants a nd Appellee s

Dated this 12 day

of De cembe r, 2019. th
OL SON & B URNS P.C
.

/s/ J essica L . Merc hant Richard P. Olson (ID# 03183) J essica L . Merc hant (ID #06169) Ry an G. Qua

rne ( I D# 07618) OL SON & B URNS P.C
. 17 First Ave nue SE P.O. Box 1180 Minot, ND 58702-1180 (701) 839- 1740 rpolson@minotlaw.com jmercha nt@srt.com rg quarne @minotlaw.com ATTORNEYS F OR APPEL LANTS LAVERNE MI KKEL SON AND KA

NDI MI KKEL SON

12[¶37] CERTIFIC ATE OF COM P LIANCE I , J essica L . Merc hant, attorne y for the A ppellants L aVe rne Mikkelson a nd Kandi Mikkelson, do here by

cer tify that the above brief c omplies with all ty pe-volume limit ations as set for

th in the North Dakota

Rules of Appellate Procedur e. Ifurther cer tify that the attac hed Reply

Brief of A

ppellants complies with N.D.R.App.P. 32 in that the brief doe s not ex cee d the re ply brief limitation of 12 pag es, and wa s prepa

red usingWordPerfec t 10.0, Times New Roman font, size 12. Dated this 12th day

of De cembe r, 2019.

OL SON & B URNS P.C
. /s/ J essica L . Merc hant Richard P. Olson (ID# 03183) J essica L . Merc hant (ID #06169) Ry an G. Qua

rne ( I D# 07618) OL SON & B URNS P.C
. 17 First Ave nue SE P.O. Box 1180 Minot, ND 58702-1180 (701) 839- 1740 rpolson@minotlaw.com jmercha nt@srt.com rg quarne @minotlaw.com ATTORNEYS F OR APPEL LANTS LAVERNE MI KKEL SON AND KA

NDI MI KKEL SON

13