Filed 1/23/20 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2020 ND 20

Gene Vincent Hondl, Plaintiff and Appellant

v.

State of North Dakota and Stark County, Defendants and Appellees

No. 20190099

Appeal from the District Court of Stark County, Southwest Judicial District, 

the Honorable James D. Gion, Judge.

VACATED AND REMANDED.

Opinion of the Court by VandeWalle, Justice.

Gene Vincent Hondl, self-represented, Lexington, KY, plaintiff and appellant; 

on brief.

Brittney A. Bornemann, Assistant State’s Attorney, Dickinson, ND, for 

defendants and appellees; on brief.
1

Hondl v. State

No. 20190099

VandeWalle, Justice.

[¶1] Gene Hondl appealed from an order that granted the State’s motion to 

dismiss his “motion for writ of replevin” and dismissed his case with prejudice. 

We vacate the order and remand for further proceedings.

I

[¶2] On January 23, 2019, Hondl filed a “motion for writ of replevin” in the 

district court, in addition to filing a notice of motion, motion for evidentiary 

hearing, motion for appointment of counsel, and a certificate of service. Hondl 

named the State and Stark County as defendants (collectively, “the State”), 

seeking the return of certain personal property seized when he was arrested 

on drug charges and forfeited in separate civil forfeiture proceedings. Hondl’s

certificate of service indicates the documents were served by U.S. Mail on 

December 28, 2018. 

[¶3] On February 5, 2019, the State served and filed an answer and response 

to the motions, in addition to its motion to dismiss with supporting documents. 

In seeking a dismissal, the State alternatively asserted that Hondl did not 

appropriately serve or commence an action with proper pleadings under the 

North Dakota Rules of Civil Procedure and that the issues Hondl seeks to 

address were previously adjudicated in prior civil forfeiture proceedings filed 

in 2017, leading to a 2018 judgment that was not appealed. 

[¶4] On February 19, 2019, the district court entered its order dismissing the 

matter with prejudice. The order stated: “The Court, having reviewed the 

Motion to Dismiss brought by the State of North Dakota and Stark County, it 

is hereby ORDERED that the Motion is GRANTED. The Plaintiff’s Motions for 

Evidentiary Hearing and for Writ of Replevin are hereby DENIED and the 

matter is DISMISSED WITH PREJUDICE.”
2

II

[¶5] This Court reviews a district court’s decision granting a motion to 

dismiss de novo. See Great W. Cas. Co. v. Butler Mach. Co., 2019 ND 200, ¶ 5, 

931 N.W.2d 504. A motion to dismiss under N.D.R.Civ.P. 12(b)(6) tests the 

legal sufficiency of the claim presented in the complaint. Great W. Cas. Co., at 

¶ 5. On appeal this Court construes the complaint in the light most favorable 

to the plaintiff and accepts as true the well-pleaded allegations in the 

complaint. Id.

III

[¶6] To the extent Hondl’s “motion for writ of replevin” is an attempt to 

commence a replevin action, this Court has said that “[a] claim and delivery 

action under N.D.C.C. ch. 32-07 is the proper action to recover possession of 

personal property.” Hildenbrand v. Capital RV Ctr., Inc., 2011 ND 37, ¶ 12,

794 N.W.2d 733 (citing Dickinson v. First Nat’l Bank, 64 N.D. 273, 285, 252 

N.W. 54, 59 (1933)). 

[¶7] A claim and delivery action to recover possession of personal property “is 

a modified form of the old common-law action of replevin.” Dickinson, 252 N.W.

at 59; see N.D.C.C. § 1-01-06 (“In this state there is no common law in any case 

in which the law is declared by the code.”); see also 66 Am.Jur.2d Replevin § 3 

(2011) (“In some jurisdictions, the state’s claim and delivery statutes replaced 

the common-law action of replevin.”); 77 C.J.S. Replevin § 2 (2017) (“The action 

of replevin is not generally a common-law action any longer, and is now usually 

based on the applicable state statute.”). This Court has also explained, 

however, that it is well established that “replevin will not lie for goods in the 

custody of the law,” and “claim and delivery will not lie to recover possession 

of property seized by [the government under] an act of the legislature.” State 

v. One Black 1989 Cadillac, 522 N.W.2d 457, 465 (N.D. 1994) (quoting Shaide

v. Brynjelfson, 78 N.D. 531, 539, 50 N.W.2d 500, 504 (1951)); see 66 Am.Jur.2d

Replevin § 3 (“[C]laim and delivery will not lie to recover possession of a 

property seized by the government.”).
3

[¶8] Hondl’s arguments on appeal challenge the district court’s purported 

errors and alleged bias or conflict of interest in the prior civil forfeiture 

proceedings. He essentially attempts to collaterally attack the judgment from 

the prior proceeding. The State responds, as it did in its motion to dismiss, 

that Hondl’s case was not properly commenced and his case was properly 

dismissed as an attempt to relitigate matters previously adjudicated. In its 

motion to dismiss, the State provided the court with alternate grounds: 1) 

failure to commence an action by properly serving a summons, and 2) res 

judicata. 

[¶9] In its order, the district court did not provide the grounds or any 

explanation for its dismissal with prejudice. If the court dismissed the matter 

based on Hondl’s failure to properly serve the State, see N.D.R.Civ.P. 4(d)(2)(E) 

and 4(d)(2)(F), the order of dismissal should have been “without prejudice.” See

Riemers v. State, 2006 ND 162, ¶ 10, 718 N.W.2d 566 (“Absent personal 

jurisdiction, ‘the court is powerless to do anything beyond dismissing without 

prejudice.’”). If the court dismissed with prejudice on the basis of res judicata, 

that disposition requires consideration of matters beyond the pleadings, 

including the earlier civil forfeiture proceedings, rendering a dismissal on the 

pleadings inappropriate. See N.D.R.Civ.P. 12(d); Mills v. City of Grand Forks, 

2012 ND 56, ¶ 7, 813 N.W.2d 574 (“If . . . matters outside the pleadings are 

presented to and not excluded by the district court, the motion [must be] 

treated as a motion for summary judgment under N.D.R.Civ.P. 56.”). 

[¶10] Our decision in Franciere v. City of Mandan, 2019 ND 233, 932 N.W.2d 

907, is dispositive of this case. In Franciere, at ¶ 7, the district court dismissed

an action with prejudice after finding the case was moot, without ruling on the 

City’s request to dismiss the case for insufficient service of process and lack of 

personal jurisdiction. However, because “a determination of subject matter 

and personal jurisdiction must precede any dismissal with prejudice,” we

vacated the judgment and remanded for the court to decide the motion to 

dismiss for insufficiency of service of process and lack of personal jurisdiction. 

Id. at ¶¶ 12-13.
4

[¶11] Here, the district court dismissed the case with prejudice without 

providing any explanation. We therefore vacate the order and remand for the 

court to decide the State’s motion to dismiss for insufficiency of service of 

process and lack of personal jurisdiction. 

IV

[¶12] The order is vacated, and the case is remanded. 

[¶13] Gerald W. VandeWalle

 Daniel J. Crothers

 Lisa Fair McEvers

 Jerod E. Tufte

 Jon J. Jensen, C.J.