Aric Roth, Plaintiff and Appellee v. Gary Meyer; Marty Meyer, individually, and as Co-Trustee of the Jean L. Ehrmantrout Residuary Trust; Medora Meyer; Carlos Meyer, individually and as Co-Trustee of the Jean L. Ehrmantrout Residuary Trust; Jewel Meyer; Chet Meyer, individual, as Personal Representative of the Estate of Anthony Ehrmantrout and the Estate of Jean Ehrmantrout, and as Co-Trustee of the Jean L. Ehrmantrout Residuary Trust; and Debbie Meyer, Defendants, Appellants, and Cross-Appellees (2024)

ORDER

[¶1] The Court reviewed this matter and ORDERED, that on the cover page, a space be inserted between “and” and “Cross-Appellees,” page 1, paragraph 5, page 2, paragraphs 7 and 8, page 6, paragraphs 20 and 21, page 11, paragraph 39, and page 13, paragraph 45, of the opinion filed in this case on 06/06/2024 be deleted and that the cover page, a space be inserted between “and” and “Cross-Appellees,” page 1, paragraph 5, page 2, paragraphs 7 and 8, page 6, paragraphs 20 and 21, page 11, paragraph 39, and page 13, paragraph 45, filed this day be substituted.

[¶2] The Supreme Court of the State of North Dakota convened with the Honorable Jon J. Jensen, Chief Justice, and the Honorable Daniel J. Crothers, the Honorable Lisa Fair McEvers, the Honorable Jerod E. Tufte, and the Honorable Douglas A. Bahr, Justices, directing the Clerk of the Supreme Court to enter the above order.

Lisa J.H. Andersen Chief Deputy Clerk North Dakota Supreme

20230310 - Filed 06-06-2024

NORTH DAKOTA SUPREME COURT

Substitute Opinion Cover Page, Page 1, Paragraph 5, Page 2, Paragraphs 7 and 8, Page 6, Paragraphs 20 and 21, Page 11, Paragraph 39, and Page 13, Paragraph 45 filed 7/03/24

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2024 ND 113

Mary Roth, Plaintiff, Appellee, and Cross-Appellant

and

Aric Roth, Plaintiff and Appellee

v.

Gary Meyer; Marty Meyer, individually, and as Co-Trustee of the Jean L. Ehrmantrout Residuary Trust; Medora Meyer; Carlos Meyer, individually and as Co-Trustee of the Jean L. Ehrmantrout Residuary Trust; Jewel Meyer; Chet Meyer, individual, as Personal Representative of the Estate of Anthony Ehrmantrout and the Estate of Jean Ehrmantrout, and as Co-Trustee of the Jean L. Ehrmantrout Residuary Trust; and Debbie Meyer, Defendants, Appellants, and Cross-Appellees

No. 20230310

Appeal from the District Court of Grant County, South Central Judicial District, the Honorable Daniel J. Borgen, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Crothers, Justice.

Jennifer M. Gooss, Beulah, ND, for plaintiff, appellee and cross-appellant Mary Roth and plaintiff and appellee Aric Roth.

Elizabeth A. Elsberry (argued) and Christopher E. Rausch (appeared), Bismarck, ND, for defendants, appellants, and cross-appellees.

Crothers, Justice.

[¶1] Gary Meyer and the Meyer family appeal from a district court's findings of fact, conclusions of law, order for judgment, judgment, and amended judgment. We reverse the judgments that the loans are enforceable and reverse the findings, conclusions and judgments and remand with directions that the court quiet title in favor of the true owner, make findings on when conversion occurred, make the finding on the correct value of the converted cattle, and if appropriate make findings on unjust enrichment. These findings must be based on the current record.

[¶2] Gary Meyer argues the court erred by: (1) not quieting title to the subject property in favor of Gary Meyer and family; (2) including prohibiting defendants from preventing plaintiffs from accessing the subject property; (3) receiving summary exhibits 20, 21 and 23 into evidence without admissible supporting evidence; (4) denying his N.D.R.Civ.P. 52(c) motion for judgment on partial findings; (5) finding Gary Meyer converted 13 cattle and valuing the cattle at $2,100 per head; and (6) finding he breached oral loan agreements with Mary Roth and awarding her damages.

[¶3] Mary Roth cross-appeals arguing that the district court correctly found Gary Meyer breached his contract by failing to pay back loans, but erred by not awarding the total amount of all loans. Mary Roth agrees the court properly found Gary Meyer converted some of her cattle, but contends the court erred in limiting the conversion to 13 head.

I

[¶4] Gary Meyer is a rancher and has raised cattle since 1962. He married Dolores Meyer and the couple had three children, Chet, Carlos and Marty Meyer. Dolores Meyer died in 1999.

[¶5] Gary Meyer and Mary Roth began dating in the early 2000's. The couple resided in Elgin, North Dakota, after a fire burned down Gary Meyer's residence on the subject property, which consists of ten acres in section 13, township 133, range 89 west. The couple cohabitated from 2002 until 2022 when their relationship ended. The couple never married but shared a bank account and together ran an intermingled cattle herd.

[¶6] On September 1, 1994, Anthony and Jean Ehrmantrout conveyed the subject property to each other, making themselves tenants in common. The same day, the Ehrmantrouts made wills giving specified property to each of their grandchildren, Chet, Carlos and Marty Meyer. The subject property was not included in the grandchildren's devisements. The wills provide that any farm property not specifically devised is bequeathed to Dolores Meyer. The Ehrmantrouts’ wills stated any property in the residual clause was to be moved into a trust for ultimate conveyance to the trustee, either the surviving Ehrmantrout or Dolores Meyer.

[¶7] Dolores Meyer died in 1999. The Ehrmantrouts died in 2001. In November 2001, Chet Meyer, as Jean Ehrmantrout's personal representative, distributed the decedent's remainder interest from her estate to Chet, Carlos and Marty Meyers as co-trustees of the Jean Ehrmantrout Residuary Trust. The deed of distribution specifically excluded the subject property. In December 2001, Chet, Carlos and Marty Meyer as co-trustees of the Jean Ehrmantrout Residuary Trust gave a warranty deed for what the deed described as a remainder interest in section 13 to Chet, Carlos and Marty Meyer. This transfer excluded the subject property.

[¶8] On May 7, 2004, Marty Meyer conveyed his interest in section 13 to Gary Meyer via a quit claim deed. As of May 7, 2004, ownership of section 13 was split between the trust that owned the subject property, Gary, Chet and Carlos Meyer who each owned a one-third interest in the remainder of section 13. Gary Meyer paid taxes on all of section 13 from 2004 to 2009. Gary Meyer testified he lived on the subject property since 1962 and thought he owned it until 2019. He testified that he mortgaged the subject property but the record contains no further evidence about any mortgages. On April 12, 2010, Gary Meyer conveyed his interest in the subject property to Mary Roth via a quit claim deed. Mary Roth paid the land taxes on the subject property from 2010 to 2021. consent of the owner.” 16 Richard R. Powell, Powell on Real Property, § 91.02 (2023).

[¶20] On September 1, 1994, Anthony and Jean Ehrmantrout transferred the subject property to each other. In 2001, Anthony and Jean Ehrmantrout died. The estate held all of section 13 until November 2001 when Chet Meyer, as personal representative, distributed the estate to Chet, Carlos and Marty Meyer as co-trustees of the Jean Ehrmantrout Residuary Trust. In December, 2001, Marty, Carlos and Chet Meyer as co-trustees of the Jean Ehrmantrout Residuary Trust delivered themselves a warranty deed for section 13, excluding the subject property. In 2004, Marty Meyer gave Gary Meyer his interest in section 13.

[¶21] The district court did not make findings on whether the Ehrmantrouts occupied the subject property after the September 1994 grant. Nor did it make a finding on whether the Ehrmantrouts and the Meyers had an agreement allowing the Meyers to remain on the property after the September 1994 grant, or if the Meyers remained on the subject property hostile to or in defiance of Ehrmantrouts’ ownership arising from the September 1994 grant.

[¶22] We reverse and remand for the district court to find who was in possession of the subject property during the relevant periods and whether that possession was adverse to the owner for the requisite amount of time. Next, the court must find who the true owner is, to quiet title in their favor, and if necessary, to make findings on unjust enrichment. The court's findings must be made based on the evidence admitted at trial.

III

[¶23] Gary Meyer argues the district court erred in receiving exhibits 20, 21 and 23 into evidence. Those exhibits are summaries of cattle lineage and he claims the supporting documents were inadmissible, making the summaries inadmissible. is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by any evidence, or if, although there is some evidence to support it, a reviewing court is left with a definite and firm conviction a mistake has been made.” Hunter, 2020 ND 224, ¶ 11.

[¶38] The damages for conversion are either:

“1. The value of the property at the time of the conversion, with the interest from that time; or

2. When the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party; and

3. A fair compensation for the time and money properly expended in pursuit of the property.”

N.D.C.C. § 32-03-23. Damages in conversion must be based on market value unless a market does not exist for the converted property. Company A, First Regiment, North Dakota Nat'l Guard Training Sch. v. Hughes, 205 N.W. 722, 727 (N.D. 1925). The losses a person can recover on a conversion claim must be the “actual losses suffered.” Buri, 2005 ND 65, ¶ 22; see also Frank v. Schaff, 123 N.W.2d 827, 830 (N.D. 1963) (“Actual damages, however, can be awarded only for actual losses suffered by the plaintiff.”).

[¶39] Here, the district court requested post-trial briefing on what the parties believed was the value of the alleged converted cattle. Mary Roth claimed the cattle were worth $2,100 per head. Gary Meyer argued the cattle were worth little to nothing and Mary Roth was entitled to no more than nominal damages. The court chose $2,100 per head by considering the sum of cattle sales, average of the yearly sales, and then an average of all the years.

[¶40] The district court misapplied the law and clearly erred in finding the value of the converted cattle. Under Buri, Frank and Hughes, a plaintiff may recover losses if there is a market for the converted property, but cannot be awarded both the value of the property and value of the loss of possession. Buri, 2005 ND 65, ¶¶ 24-25; Hughes, 205 N.W. at 727; Frank, 123 N.W.2d at 830. The award of $2,100 per head does not represent Mary Roth's actual damages. agreement must be in writing, and the contract cannot rest partly in writing and partly in parol.” Id. at ¶ 14.

[¶44] Gary Meyer raised the statute of frauds defense in his amended answer. The district court found Gary Meyer and Mary Roth entered two loans. One loan was for $50,000, dated April 26, 2009, and the other for $2,500, dated August 15, 2007. The court found the agreements were made orally, and included that Gary Meyer would pay Mary Roth when he could. Loans in aggregate greater than $25,000 must be in writing. N.D.C.C. § 9-06-04(4). Here, the only writing was the carbon copy of the checks that said “loan” and the amount.

[¶45] The copies of the checks identify the parties and the amount of the loan. Because Mary Roth's loans are in aggregate greater than $25,000 the statute of frauds applies and the loans are unenforceable against Gary Meyer. See First State Bank of Goodrich v. Oster, 500 N.W.2d 593, 594-95 (N.D. 1993) (holding oral agreement for three loans due 18 months apart were in aggregate greater than $25,000 and unenforceable under N.D.C.C. § 9-06-04(4)). We reverse because the district court erred when it did not apply the statute of frauds and when it found Gary Meyer was required to pay $52,500 for breaching the contracts with Mary Roth. The issues over loans may be a basis for recovery if the court finds Gary Meyer was unjustly enriched. If so, the court's findings on that issue must be made based on the evidence admitted at trial.

VII

[¶46] The district court erred in finding Gary Meyer held the subject property by prescription via adverse possession. The court abused its discretion in admitting exhibits 20 and 21 and relying on exhibit 23. The court erred when it failed to find when conversion began and whether Gary Meyer converted Mary Roth's cattle within the statute of limitations period. The court also erred when it valued the converted cattle at the average of $2,100 per head as an estimation. The court erred when it found Gary Meyer owed on loan contracts, the enforcement of which was barred by the statute of frauds. We have considered all other arguments Gary Meyer and Mary Roth raised and

20230310 - Filed 06-06-2024

NORTH DAKOTA SUPREME COURT

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2024 ND 113

Mary Roth, Plaintiff, Appellee, and Cross-Appellant

and

Aric Roth, Plaintiff and Appellee

v.

Gary Meyer; Marty Meyer, individually, and as Co-Trustee of the Jean L. Ehrmantrout Residuary Trust; Medora Meyer; Carlos Meyer, individually and as Co-Trustee of the Jean L. Ehrmantrout Residuary Trust; Jewel Meyer; Chet Meyer, individual, as Personal Representative of the Estate of Anthony Ehrmantrout and the Estate of Jean Ehrmantrout, and as Co-Trustee of the Jean L. Ehrmantrout Residuary Trust; and Debbie Meyer, Defendants, Appellants, and Cross-Appellees

No. 20230310

Appeal from the District Court of Grant County, South Central Judicial District, the Honorable Daniel J. Borgen, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Crothers, Justice.

Jennifer M. Gooss, Beulah, ND, for plaintiff, appellee and cross-appellant Mary Roth and plaintiff and appellee Aric Roth.

Elizabeth A. Elsberry (argued) and Christopher E. Rausch (appeared), Bismarck, ND, for defendants, appellants, and cross-appellees.

Crothers, Justice.

[¶1] Gary Meyer and the Meyer family appeal from a district court's findings of fact, conclusions of law, order for judgment, judgment, and amended judgment. We reverse the judgments that the loans are enforceable and reverse the findings, conclusions and judgments and remand with directions that the court quiet title in favor of the true owner, make findings on when conversion occurred, make the finding on the correct value of the converted cattle, and if appropriate make findings on unjust enrichment. These findings must be based on the current record.

[¶2] Gary Meyer argues the court erred by: CL) not quieting title to the subject property in favor of Gary Meyer and family; (2) including prohibiting defendants from preventing plaintiffs from accessing the subject property; (3) receiving summary exhibits 20, 21 and 23 into evidence without admissible supporting evidence; (4) denying his N.D.R.Civ.P. 52(c) motion for judgment on partial findings; (5) finding Gary Meyer converted 13 cattle and valuing the cattle at $2,100 per head; and (a) finding he breached oral loan agreements with Mary Roth and awarding her damages.

[¶3] Mary Roth cross-appeals arguing that the district court correctly found Gary Meyer breached his contract by failing to pay back loans, but erred by not awarding the total amount of all loans. Mary Roth agrees the court properly found Gary Meyer converted some of her cattle, but contends the court erred in limiting the conversion to 13 head.

I

[¶4] Gary Meyer is a rancher and has raised cattle since 1962. He married Dolores Meyer and the couple had three children, Chet, Carlos and Marty Meyer. Dolores Meyer died in 1999.

[¶5] Gary Meyer and Mary Roth began dating in the early 2000's. The couple resided in Elgin, North Dakota, after a fire burned down Gary Meyer's residence on the subject property, which consists of ten acres in section 13, township 133, range 89 west. The couple cohabitated from 2002 until 2022 when their relationship ended. The couple never married but shared a bank account and together ran an intermingled cattle herd. Gary and Dolores Meyer owned the subject property prior to November 3, 1982. On November 3, 1982, Gary and Dolores Meyer gave Anthony Ehrmantrout. Dolores Meyer's father, a warranty deed for the subject property.

[¶6] On September 1, 1994, Anthony and Jean Ehrmantrout conveyed the subject property to each other, making themselves tenants in common. The same day, the Ehrmantrouts made wills giving specified property to each of their grandchildren, Chet, Carlos and Marty Meyer. The subject property was not included in the grandchildren's devisements. The wills provide that any farm property not specifically devised is bequeathed to Dolores Meyer. The Ehrmantrouts’ wills stated any property in the residual clause was to be moved into a trust for ultimate conveyance to the trustee, either the surviving Ehrmantrout or Dolores Meyer;

[¶7] Dolores Meyer died in 1999. The Ehrmantrouts died in 2001. In November 2001, Chet Meyer, as Jean Ehrmantrout's personal representative, distributed her estate from the trust. The deed of distribution specifically excluded the subject Property. In December 2001, Chet, Carlos and Marty Meyer gave a warranty deed for section 13 to Marty Meyer. This transfer excluded the subject property.

[¶8] On May 14, 2004, Marty Meyer conveyed his interest in section 13 to Gary Meyer via a quit claim deed. As of May 14, 2004, ownership of section 13 was split between the trust that owned the subject property, and Gary Meyer who owned the remainder of section 13. Gary Meyer paid taxes on all of section 13 from 2004 to 2009. Gary Meyer testified he lived on the subject property since 1962 and thought he owned it until 2019. He testified that he mortgaged the subject property but the record contains no further evidence about any mortgages. On April 12, 2010, Gary Meyer conveyed his interest in the subject property to Mary Roth via a quit claim deed. Mary Roth paid the land taxes on the subject property from 2010 to 2021. consent of the owner.” 16 Richard R. Powell, Powell on Real Property, § (2023).

[¶20] On November 3, 1982, Gary and Dolores Meyer conveyed the subject property to Anthony Ehrmantrout by warranty deed. On September 1, 1994, Anthony and Jean Ehrmantrout transferred the property to each other. In 2001, Anthony and Jean Ehrmantrout died. The subject property was placed into trusts according to the Ehrmantrouts’ wills because Dolores Meyer predeceased them. The trust held the subject property until November 2001 when Chet Meyer, as personal representative, distributed the estate to Chet, Carlos and Marty Meyer. In December, 2001, Marty, Carlos and Chet Meyer gave Marty Meyer a warranty deed for section 13, excluding the subject property. In 2004, Marty Meyer gave Gary Meyer his interest in section 13.

[¶21] The district court did not make findings on whether the Ehrmantrouts occupied the subject property after reviving the November 3, 1982 deed. Nor did it make a finding on whether the Ehrmantrouts and the Meyers had an agreement allowing the Meyers to remain on the property after the Meyers gave the deed to the Ehrmantrouts, or if the Meyers remained on the subject property hostile to or in defiance of Ehrmantrouts’ ownership.

[¶22]We reverse and remand for the district court to find who was in possession of the subject property during the relevant periods and whether that possession was adverse to the owner for the requisite amount of time. Next, the court must find who the true owner is, to quiet title in their favor, and if necessary, to make findings on unjust enrichment. The court's findings must be made based on the evidence admitted at trial.

III

[¶23]Gary Meyer argues the district court erred in receiving exhibits 20, 21 and 23 into evidence. Those exhibits are summaries of cattle lineage and he claims the supporting documents were inadmissible, making the summaries inadmissible. is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by any evidence, or if, although there is some evidence to support it, a reviewing court is left with a definite and firm conviction a mistake has been made.” Hunter, 2020 ND 224, ¶ 11.

[¶38] The damages for conversion are either:

“1. The value of the property at the time of the conversion, with the interest from that time; or

2. When the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party; and

3. A fair compensation for the time and money properly expended in pursuit of the property.”

N.D.C.C. § 32-03-23. Damages in conversion/must be based on market value unless a market does not exist for the converted property. Company A, First Regiment, North Dakota Nat'l Guard Training Sch. v. Hughes, 205 N.W. 722, 727 (N.D. 1925). The losses a person can recover on a conversion claim must be the “actual losses suffered.” Buri, 2005 ND 65, ¶ 22; see also Frank v. Schaff, 123 N.W.2d 827, 830 (N.D. 1963) (“Actual damages, however, can be awarded only for actual losses suffered by the plaintiff.”).

[¶39] Here, the district court requested post-trial briefing on what the parties believed was the value of the alleged converted cattle. Mary Roth claimed the cattle were worth $2,100 per head. Gary Roth argued the cattle were worth little to nothing and Mary Roth was entitled to no more than nominal damages. The court chose $2,100 per head by considering the sum of cattle sales, average of the yearly sales; and then an average of all the years.

[¶40] The district court misapplied the law and clearly erred in finding the value of the converted cattle. Under Buri, Frank and Hughes, a plaintiff may recover looses if there is a market for the converted property, but cannot be awarded both the value of the property and value of the loss of possession. Buri, 2005 ND 65, ¶¶ 24-25; Hughes, 205 N.W. at 727; Frank, 123 N.W.2d at 830. The award of $2,100 per head does not represent Mary Roth's actual damages. agreement must be in writing, and the contract cannot rest partly in writing-and partly in parol.” Id. at ¶ 14.

[¶44] Gary Meyer raised the statute of frauds defense in his amended answer. The district court found Gary Meyer and Mary Roth entered two loans. One loan was for $50,000, dated April 26, 2009, and the other for $2,500, dated August 15, 2007. The court found the agreements were made orally, and included that Gary Meyer would pay Mary Roth when he could. Loans in aggregate greater than $25,000 must be in writing. N.D.C.C. § 9-06-04(4). Here, the only writing was the carbon copy of the checks that said ‘loan” and the amount.

[¶45] The copies of the checks identify the parties and the amount of the loan. Because Mary Roth's loans are in aggregate greater than $25,000 the statute of frauds applies and the loans are unenforceable against Gary Meyer. See First State Bank of Goodrich v. Oster, 500 N.W.2d 593, 594-95 (N.D. 1993) (holding oral agreement for three loans due 18 months apart were in aggregate greater than $25,000 and unenforceable under N.D.C.C. § 9-06-04(4)). We reverse because the district court erred when it did not apply the statute of frauds and when it found Gary Meyer was required to pay $52,500 for breaching the contracts with Mary Roth. The issues over loans may be a basis for recovery if the court finds Gary Meyer was unjustly enriched, as Mary Roth claimed. If so, the court's findings on that issue must be made based on the evidence admitted at trial.

VII

[¶46] The district court erred in finding Gary Meyer held the subject property by prescription via adverse possession. The court abused its discretion in admitting exhibits 20 and 21 and relying on exhibit 23. The court erred when it failed to film when conversion began and whether Gary Meyer converted Mary Roth's cattle within the statute of limitations period. The court also erred when it valued the converted cattle at the average of $2,100 per head as an estimation. The court erred when it found Gary Meyer owed on loan contracts, the enforcement of which was barred by the statute of frauds. We have considered all other arguments Gary Meyer and Mary Roth raised and