Whitetail Wave v. XTO Energy , 2022 ND 171 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
SEPTEMBER 29, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 171Whitetail Wave LLC, a Montana Limited
Liability Company, Plaintiff and Appellant
v.
XTO Energy, Inc., a Delaware corporation,
the Board of University and School Lands of
the State of North Dakota, the State of
North Dakota, and Department of Water
Resources and Director, Defendants and Appellees
No. 20220061
Appeal from the District Court of McKenzie County, Northwest Judicial
District, the Honorable Robin A. Schmidt, Judge.
DISMISSED.
Opinion of the Court by Jensen, Chief Justice.
Joshua A. Swanson, Fargo, ND, for plaintiff and appellant.
Spencer D. Ptacek (argued) and Lawrence Bender (on brief), Bismarck, ND, for
defendant and appellee XTO Energy, Inc.
David P. Garner (argued) and Jennifer L. Verleger (on brief), Assistant
Attorneys General, Bismarck, ND, for defendants and appellees The Board of
University and School Lands of the State of North Dakota, The State of North
Dakota, and Department of Water Resources and Director.
Whitetail Wave v. XTO Energy
No. 20220061
Jensen, Chief Justice.
[¶1] Whitetail Wave LLC (“Whitetail”) appeals from two judgments entered
by the district court following the entry of orders granting summary judgment
and dismissing claims asserted by Whitetail against XTO Energy, Inc. (“XTO”)
and the Board of University of School Lands of the State of North Dakota, the
State of North Dakota, and the Department of Water Resources and Director
(collectively “State”). Whitetail asserts the court erred by dismissing its claim
asserting the State had committed an unconstitutional taking of its property
interest, by dismissing Whitetail’s trespass, slander of title, unjust enrichment
and constructive trust claims asserted against the State, by determining XTO
had not breached its lease agreement by failing to pay royalties owed to
Whitetail, by determining XTO did not violate N.D.C.C. § 47-16-39.1, and by
dismissing Whitetail’s constructive fraud claim asserted against XTO. Because
we conclude there are quiet title claims asserted by Whitetail remaining
unresolved, we dismiss the appeal.
I
[¶2] Whitetail sued the State and XTO, requesting the district court
determine ownership of certain minerals in McKenzie County and asserting
various other claims, including breach of an oil and gas lease, failure to pay
royalties for production from minerals, and an unconstitutional taking without
just compensation. All of the parties moved for summary judgment. The court
granted the State’s motion for summary judgment, dismissed Whitetail’s
claims against the State, and ordered the entry of a judgment. The court later
granted XTO’s motion for summary judgment, dismissed Whitetail’s claims
against XTO, and ordered the entry of a second judgment.
[¶3] Whitetail specifically pled a claim to quiet title from any claims of the
defendants to mineral interests located in sections 25, 26, 27, 34 and 35 of
Township 154 North, Range 96 West. The judgment dismissing the claims
against the State is limited to quieting title in favor of the State in 85.79
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mineral acres within the SE1/4 of Section 27 and 123.92 mineral acres within
the SW1/4 of Section 27, and dismissing all of the remaining claims asserted
against the State. The judgment is silent with regard to Sections 25, 26, 34 and
35.
[¶4] The judgment dismissing the claims against XTO dismissed Whitetail’s
complaint against XTO “in its entirety.” The judgment further provides it
disposes of all claims, counterclaims, cross-claims, and issues raised between
the parties. The judgment is silent regarding Whitetail’s claim to quiet title,
with regard to the defendants, in Sections 25, 26, 34 and 35.
II
[¶5] Whitetail’s claim to quiet title in Sections 25, 26, 34 and 35 remains
unresolved. Additionally, several of Whitetail’s claims include the assertion the
State improperly asserted claims over mineral acres it did not have an interest
in, or alternatively, there was not a genuine dispute over those mineral
interests and XTO should not have been withholding royalty payments owed
to Whitetail.
[¶6] We have previously reviewed the propriety of an appeal in cases where
less than all of the underlying claims have been resolved, even when none of
the parties to the appeal have requested review. See James Vault & Precast
Co. v. B&B Hot Oil Serv., Inc., 2018 ND 63, ¶ 9, 908 N.W.2d 108 (reviewing an
appeal from a stipulated judgment dismissing some of the pending claims
without prejudice and concluding the judgment was not a final judgment for
the purpose of an appeal). In James Vault we noted the following:
It is well established that the right to appeal in this State is
governed by statute, and if there is no statutory basis to hear an
appeal, we must dismiss the appeal. E.g., Sanderson v. Walsh
Cnty., 2006 ND 83, ¶ 5, 712 N.W.2d 842. Our appellate jurisdiction
is governed by N.D.C.C. § 28-27-01, which provides, in relevant
part, “[a] judgment or order in a civil action . . . in any of the district
courts may be removed to the supreme court by appeal as provided
in this chapter.” We have previously held that “[o]nly those
judgments and decrees which constitute a final judgment of the
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rights of the parties to the action and orders enumerated by statute
are appealable.” In re A.B., 2005 ND 216, ¶ 5, 707 N.W.2d 75. The
right to appeal is jurisdictional and we will dismiss an appeal on
our own motion if we conclude we do not have jurisdiction. Id.We will not consider an appeal in a multi-claim or multi-party
lawsuit which disposes of fewer than all the claims against all the
parties unless the district court has first independently assessed
the case and determined that a certification under N.D.R.Civ.P.
54(b) is appropriate. Capps v. Weflen, 2013 ND 16, ¶ 6, 826 N.W.2d
605; Brown v. Will, 388 N.W.2d 869 (N.D. 1986). Rule 54(b),
N.D.R.Civ.P., authorizes a district court to direct entry of a final
judgment adjudicating fewer than all the claims, or the rights and
liabilities of fewer than all of the parties, upon expressly
determining there is no just reason for delay. “Rule 54(b),
N.D.R.Civ.P., preserves [our] long[-]standing policy against
piecemeal appeals.” Pifer v. McDermott, 2012 ND 90, ¶ 8, 816
N.W.2d 88 (quoting Citizens State Bank-Midwest v. Symington,
2010 ND 56, ¶ 7, 780 N.W.2d 676). “Upon requesting Rule 54(b)
certification, the burden is upon the proponent to establish
prejudice or hardship which will result if certification is denied.”
Union State Bank v. Woell, 357 N.W.2d 234, 237 (N.D. 1984). A
district court must weigh the competing equities involved and
must consider judicial administrative interests in making its
determination whether to certify under Rule 54(b). Woell, at 237.
Certification under Rule 54(b) “should not be routinely granted
and is reserved for cases involving unusual circumstances where
failure to allow an immediate appeal would create a demonstrated
prejudice or hardship.” Symington, at ¶ 9.
2018 ND 63, ¶¶ 8-9.
[¶7] The judgments entered in the district court do not dispose of all of the
claims and are not final. Additionally, the parties did not request, and the
district court has not made, a determination that there is no just reason to
delay an appeal as required by N.D.R.Civ.P. 54(b). Lacking a final judgment or
proper N.D.R.Civ.P. 54(b) certification, there is no right to appeal.
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III
[¶8] We conclude the judgments are not final for purposes of our appellate
jurisdiction, and we dismiss the appeal.
[¶9] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Kari M. Agotness, D.J.
[¶10] The Honorable Kari M. Agotness, D.J., sitting in place of VandeWalle, J.,
disqualified.
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