IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2022 ND 156

Great Plains Royalty Corporation,

a North Dakota Corporation, Plaintiff and Appellant

 v.

Earl Schwartz Company, a North Dakota

partnership, Basin Minerals, LLC, a North

Dakota limited liability company, SunBehm 

Gas, Inc., a North Dakota corporation, and

Kay Schwartz York, Kathy Schwartz Mau, and

Kara Schwartz Johnson, as the Co-Personal

Representatives of the Estate of Earl N.

Schwartz, Defendants and Appellees

No. 20220052

Appeal from the District Court of McKenzie County, Northwest Judicial 

District, the Honorable Daniel S. El-Dweek, Judge.

AFFIRMED AS MODIFIED.

Opinion of the Court by Crothers, Justice.

Lynn M. Boughey (argued), Mandan, ND, and James J. Coles (appeared), 

Bismarck, ND, for plaintiff and appellant.

Spencer D. Ptacek (argued) and Lawrence Bender (appeared), Bismarck, ND,

for defendants and appellees Earl Schwartz Company, Basin Minerals, LLC, 

and Kay Schwartz York, Kathy Schwartz Mau, and Kara Schwartz Johnson as 

the co-personal representatives of the Estate of Earl N. Schwartz.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

AUGUST 4, 2022 

STATE OF NORTH DAKOTA
Jon Bogner (argued) and Jordan L. Selinger (on brief), Dickinson, ND, for

defendant and appellee SunBehm Gas, Inc.
1

Great Plains Royalty Corp. v. Earl Schwartz Co., et al.

No. 20220052

Crothers, Justice.

[¶1] Great Plains Royalty Corporation appeals from a judgment entered on 

remand from this Court. Great Plains argues the district court erred in 

granting quiet title, dismissing the conversion claim, and awarding costs and 

disbursements. Great Plains also argues the defendants’ title claims were 

barred by the statute of limitations and abandoned and the court lacked

jurisdiction to enter judgment. We direct the district court to modify the 

judgment, and we affirm as modified.

I

[¶2] We provided the background of this case in Great Plains Royalty Corp. 

v. Earl Schwartz Co., 2019 ND 124, 927 N.W.2d 880 (“Great Plains I”) and

Great Plains Royalty Corp. v. Earl Schwartz Co., 2021 ND 62, 958 N.W.2d 128 

(“Great Plains II”). The history is repeated here only as pertinent to the issues 

raised in the present appeal.

[¶3] Great Plains went bankrupt in 1968 and its assets were liquidated. The 

bankruptcy trustee published a notice of sale listing various assets, including 

oil and gas interests. Earl Schwartz purchased the oil and gas interests, and 

the bankruptcy court issued an order confirming “the sale of all assets of the 

bankrupt corporation to Earl Schwartz.” The order also noted Schwartz agreed 

to sell certain interests to SunBehm Gas, Inc., approving the transfer to 

SunBehm directly from the bankruptcy estate. The bankruptcy court issued an 

amended order confirming “the sale of all of the assets of the bankrupt 

corporation included in the Notice of Sale to Earl Schwartz.” The bankruptcy 

case was closed in 1974. 

[¶4] The case was reopened in 2013 for Great Plains’ creditors to be paid in 

full with interest. Various adversary proceedings were brought to determine 

ownership of oil and gas interests. The bankruptcy court did not determine 

title to the properties subject to this appeal. 
2

[¶5] In 2016, Great Plains sued Earl Schwartz Co. (“ESCO”) and SunBehm 

for quiet title, slander of title and conversion. ESCO and SunBehm filed quiet 

title cross claims. A bench trial took place in 2018, and the district court found 

the bankruptcy trustee intended to sell 100% of the oil and gas interests owned 

by Great Plains at the time of bankruptcy, including those not listed in the 

notice of sale. This Court reversed the judgment in Great Plains I and 

remanded for further proceedings to determine ownership of the properties and 

other claims. 2019 ND 124, ¶ 46. 

[¶6] On remand, ESCO and SunBehm argued the bankruptcy order 

confirming the sale vested them with title to the properties. The district court 

rejected the argument and quieted title to Great Plains. This Court vacated 

the title determination and conversion claim in Great Plains II, 2021 ND 62, 

¶ 33, and remanded the case “with instructions for the court to determine 

whether ownership of any interests in the tracts identified in the notice of sale 

passed to ESCO or SunBehm by virtue of the bankruptcy sale and confirmation 

order.” Id. We directed the district court to “consider Great Plains’ conversion 

claim based on the record and in light of the title determination it makes on 

remand.” Id. 

[¶7] The parties submitted supplemental briefing on remand. Great Plains 

argued ESCO’s and SunBehm’s claims were barred by the statute of 

limitations, any title claims were limited to the property described in the notice 

of sale, and Great Plains was entitled to damages. ESCO and SunBehm argued 

the bankruptcy court’s amended order conveyed all assets included in the 

notice of sale and the conversion claim should be dismissed. 

[¶8] The district court found ESCO and SunBehm obtained equitable title in 

all Great Plains’ interests described in the notice of sale and dismissed the 

conversion claim. The court entered judgment granting ESCO and SunBehm 

all right, title, and interest to the properties in the notice of sale that belonged 

to Great Plains at the time of bankruptcy. The court awarded ESCO $16,703.24 

in costs and disbursements. 
3

II

[¶9] Great Plains argues the district court lacked subject matter jurisdiction 

to quiet title on properties not listed in the complaint. Great Plains also asserts 

the judgment contains properties not listed in any of the pleadings, including 

the counterclaims.

[¶10] The issue of subject matter jurisdiction can be raised at any time. Great 

Plains II, 2021 ND 62, ¶ 12. “Subject-matter jurisdiction refers to the court’s 

power to hear and determine the general subject involved in the action[.]” 

Alliance Pipeline L.P. v. Smith, 2013 ND 117, ¶ 18, 833 N.W.2d 464. “A court 

has subject-matter jurisdiction over a proceeding if the constitution and laws 

authorize the court to hear that type of proceeding.” Id. A district court has 

subject-matter jurisdiction to “hear and determine all civil actions and 

proceedings.” N.D.C.C. § 27-05-06. Chapter 32-17, N.D.C.C., provides a cause 

of action to quiet title and determine claims to real estate in North Dakota. 

[¶11] Although cloaked as a jurisdictional issue, Great Plains’ argument really 

is one about pleading. Here, Great Plains sued ESCO and SunBehm to quiet 

title to three properties. ESCO filed a counterclaim seeking to quiet title to a 

number of properties involved in Great Plains’ bankruptcy. The properties 

listed in the district court’s judgment appear in the complaint and 

counterclaims filed in this case. The district court’s jurisdiction to determine 

civil claims coupled with the statutory cause of action to quiet title to real 

estate provided the court with authority to resolve the issues presented. 

Therefore, Great Plains’ “jurisdictional” issue is without merit.

III

[¶12] Great Plains argues the district court erred in granting quiet title. 

[¶13] This appeal stems from a bench trial. The district court’s findings of fact 

are reviewed under the clearly erroneous standard, and conclusions of law are 

fully reviewable. Great Plains II, 2021 ND 62, ¶ 10. “A finding of fact is clearly 

erroneous if it is induced by an erroneous view of the law, if there is no evidence 
4

to support it, or if, after reviewing all of the evidence, this Court is convinced 

a mistake has been made.” Id. 

A

[¶14] Great Plains argues the district court disregarded the limiting terms in 

the notice of sale. Great Plains asserts the interests included in the notice of 

sale were for production payments only, so the court erred in awarding ESCO 

and SunBehm all right, title, and interest belonging to Great Plains at the time 

of bankruptcy.

[¶15] The district court found the bankruptcy trustee acquired all interest 

Great Plains had in the properties listed in the notice of sale, and whatever 

title Great Plains had at that time was sold to ESCO at the auction. The court 

found the notice of sale included descriptions to help prospective purchasers 

identify the property. In analyzing the descriptions, the court found the 

property interest was more expansive than argued by Great Plains and 

determined “because the bankruptcy trustee described the properties as 

‘parcels’ with a legal description and not merely a well bore, this includes any 

interest Great Plains may have had in the legal description.” 

[¶16] At the time of the bankruptcy sale, the trustee was “vested by operation 

of law with the title of the bankrupt as of the date of the filing of the petition[.]” 

11 U.S.C. § 110(a) (1970). “Real and personal property shall, when practicable, 

be sold subject to the approval of the court.” 11 U.S.C. § 110(f) (1970). “The title 

to the property of a bankrupt estate which has been sold, as herein provided, 

shall be conveyed to the purchaser by the trustee.” 11 U.S.C. § 110(g) (1970). 

[¶17] Here, the notice of sale was published in various newspapers and 

included a list of assets to be sold at the auction. The notice listed property by 

parcel numbers and included a legal description of various properties. Some 

properties specified working interests. The notice directed the public to contact 

the bankruptcy trustee for “further, complete information as to description, 

appraisal, production history or personal property inventory[.]” 
5

[¶18] In a deposition filed as an exhibit in this case, Myron Atkinson, the 

bankruptcy trustee, testified as follows:

“Q. What was your understanding as a trustee as to the nature of 

the title you would convey? And I’m specifically looking at, did you 

provide any warranties of title or condition or anything like that 

related to the assets? 

A. No. I could only convey that which I held as trustee in

bankruptcy. It certainly wasn’t my expectation that we were

warranting titles.

. . . . 

Q. When you offered the properties where you were selling just

royalties, and some of those royalty interests, I believe, were

described as royalty interests in specific wells, do you recall—I

mean, was there any discussion or mention of something being sold

other than just a royalty interest in a particular well that was

named?

A. Well, first, I have no recollection of any question coming up as

to what’s the nature of the interest being offered. Is it a working

interest? Is it a royalty interest? Is it a mineral interest? I don’t

recall any discussion of that kind at all. I think, you know, I’d have

to assume that the people who were there understood what the

descriptions were and expressed their bidding interest based on

that.

Q. Would it be fair to say, then, basically the representations made

to the bidders were the fact that you published the sale list of

property to be sold and they had to evaluate them?

A. There was no representation of anything other than the

described properties on the advertised notice.

. . . . 

Q. Do you recall having any discussion with any of the bidders

about what was being advertised as opposed to what was being

sold, or were they just informed to rely on the notices that they

had?

A. I don’t recall any discussion taking place as to what the nature

of the interest was.”

[¶19] The trustee’s report of sale and petition for order confirming the sale 

stated “the assets of the bankrupt estate were offered for sale” and the trustee 

opened the bidding for “all of the assets of the estate.” The report states the 
6

trustee announced all sales were “as is” and “the Trustee warranted neither 

title nor condition of the property and that the Trustee was selling merely the 

interest of the bankrupt estate and no more.” The bankruptcy court’s partial 

amended order confirming sale of assets states the “Referee confirms the sale 

of all of the assets of the bankrupt corporation included in the Notice of Sale[.]”

[¶20] On this record, the district court’s findings are supported by evidence 

and were not induced by an erroneous view of the law. Thus, the court’s 

decision quieting title in favor of the defendants was not clearly erroneous.

B

[¶21] Great Plains argues the properties listed in the judgment are 

inconsistent with the properties listed in the notice of sale. ESCO concedes the 

judgment contains an error in the classification of certain property. 

[¶22] ESCO contends the following land descriptions were not included in the 

notice of sale:

“Township 160 North, Range 91 West, Burke County, North 

Dakota

Section 3: SW1/4NW1/4, NW1/4SW1/4

Section 4: SE1/4NE1/4, NE1/4SE1/4

Section 10: N1/2NW1/4, NE1/4, NE1/4SW1/4, SE1/4NW1/4,

W1/2SE1/4

Section 11: W1/2NW1/4.”

Paragraph 4 of the judgment lists the aforementioned property as both 

“Noticed Properties” and “Unnoticed Properties.” ESCO asserts that property 

should be considered “Unnoticed Properties” because it was not included in the 

notice of sale. We agree.

[¶23] Upon an appeal from a civil judgment, this Court may modify the 

judgment. N.D.R.App.P. 35(a)(1); Thomas v. Thomas, 2020 ND 18, ¶ 9, 937 

N.W.2d 554 (directing district court to modify judgment and affirming as 

modified). We direct the district court to enter an amended judgment

correcting the classification of property by modifying paragraph 4 to remove 
7

Township 160 North, Range 91 West, Burke County, North Dakota, Sections 

3, 4, 10, and 11 from “Noticed Properties.”

IV

[¶24] Great Plains argues the district court erred in determining the award 

amount for ESCO’s costs and disbursements. We agree. 

[¶25] Section 28-26-06, N.D.C.C., requires the clerk of court to tax certain costs 

and disbursements as part of a judgment in favor of the prevailing party. 

Section 28-26-06(2) requires disbursements for “procuring evidence necessarily 

used or obtained for use on the trial[.]” “Recovery of expenses is not limited to 

evidence actually introduced at trial.” Braunberger v. Interstate Eng’g, Inc.,

2000 ND 45, ¶ 18, 607 N.W.2d 904. However, recovery is limited to expenses 

incurred in preparation for trial. N.D.C.C. § 28-26-06(2).

[¶26] Here, ESCO sought the payment of $6,947.06 for “Expenses of Obtaining 

Evidence for Use at Trial (N.D.C.C. § 28-26-06(2)).” Its schedule of costs listed

a $4,641.40 landman fee from July 2021 and a $2,296.66 landman fee from 

August 2021.1 Great Plains objected to the payment of landman fees because 

they were incurred three years after trial. ESCO argued the fees were allowed 

under N.D.C.C. § 28-26-06(2) because the landman was hired to gather 

evidence for the evidentiary hearing ESCO requested after this Court’s remand 

in Great Plains II. 

[¶27] The district court did not address Great Plains’ objection to the landman 

fees. The court awarded $16,703.24 in costs and disbursements against Great 

Plains. That total was determined based on ESCO’s request for $20,922.74, 

minus $112.50 for ESCO’s costs in the second appeal and offset by $4,107.00 

for Great Plains’ cost for a successful first appeal.

[¶28] Here, trial took place in 2018 and two appeals followed. After the second 

appeal, and without confirmation an evidentiary hearing would take place, 

1 The schedule of costs also listed a $9 fee for land records. The landman fees plus the land record fee 

equals $6,947.06.
8

ESCO hired a landman to assist in the production of new evidence. Our second 

remand directed the district court to “reconsider Great Plains’ conversion claim 

based on the record and in light of the title determination it makes on remand.” 

Great Plains II, 2021 ND 62, ¶ 33. Because the landman fees were not incurred 

for procuring evidence for use at trial, and because the second remand was a 

consideration on the record, the district court erred in taxing the new landman 

fees to Great Plains. 

[¶29] Paragraph 11 in the judgment currently awards $16,703.24 in costs and 

disbursements against Great Plains. The landman fees total $6,938.06. We 

direct the district court to modify paragraph 11 of the judgment to subtract

$6,938.06 from the award of costs and disbursements taxed against Great 

Plains.

V

[¶30] The remaining issues and arguments are either without merit or 

unnecessary to our decision. The district court’s decision to quiet title in favor 

of the defendants is not clearly erroneous. We modify the judgment to correct 

classification of certain property and to subtract the landman fees from costs 

and disbursements taxed against Great Plains. The judgment is affirmed as 

modified.

[¶31] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte